Mr R D Wiseman v Sysco GB Ltd: 6020132/2025
JUDGMENT
The judgment of the Tribunal is that the Claimant’s claim for unfair dismissal is dismissed pursuant to Section 108 of the Employment Rights Act as he did not have 2 year’s continuous service to pursue the claim and the Tribunal had no jurisdiction to hear it.REASONS
[1]The Claimant made a claim for unfair dismissal in his Claim Form received by the Tribunal on 30 May 2025. In the Response Form submitted by the Respondent dated 25 June 2025, the Respondent asserted that the Claimant was employed between 13 March 2023 and 6 February 2025 and did not have continuous service of two years in order to make a claim for unfair dismissal. Accordingly, it requested that there be a preliminary hearing on jurisdiction on the basis that the Claimant did not have two years continuous service and section 108 of the Employment Rights Act 1996 (‘ERA’) in order to be qualified to make a claim for unfair dismissal. The purpose of today’s hearing was to consider this application.[2]The Respondent turned up at the hearing and was represented by counsel. The Claimant did not attend today’s hearing although he was notified of the hearing and was aware of it. At the commencement of the hearing, I instructed the Tribunal clerk to telephone the Claimant to ascertain the reason for his no attendance. The clerk left a message on the Claimant’s voicemail and confirmed that the hearing would proceed at 11:30 am. On the non-appearance of the Claimant at that time and without any explanation for him for his non-attendance, I determined that the case should proceed in his absence.[3]I had before me the Respondent’s bundle of documents made up of 101 pages that contained the Claim Form and the Response Form, and the relevant contract of employment dated 13 March 2023 as well as documentation relating to the Claimant’s dismissal for gross misconduct. The bundle of documents also contained the letter of dismissal dated 6 February 2025. In addition, the Claimant had previously written to the Tribunal objecting to the Respondent’s application to dismiss his claim. The Claimant had written an email dated 9 July 2025 as well as an email dated 25 July 2025 objecting to the application. I also gave consideration of these emails.Facts
[4]The Claimant was employed by the Respondent as a Warehouseman under a contract of employment signed and dated by the parties on 15 March 2023. The start date in the contract of employment was 13 March 2023. The Claimant made a claim for unfair dismissal citing that he was employed by the Respondent and was dismissed unfairly for using a Christmas food voucher not in accordance with the rules of the Respondent for use of such voucher. The Claimant asserted that he did not act dishonestly, offered to pay back any sums that were rightfully owed to the Respondent and asserting that there were flaws in the procedure that was followed to dismiss him for gross misconduct on 6 February 2025.[5]The Claimant did not assert an automatically unfair reason for dismissal stating that the reason for dismissal was misconduct albeit a fair procedure was not followed in dismissing him for that reason. In his email to the Tribunal objecting to the Respondent’s application of 9 July 2025, he asserted that the timing of the dismissal was to avoid him obtaining two years continuous service to be able to qualify for the right to claim unfair dismissal. He accepted that he was some 5 weeks short of two years continuous service. He also asserted that the Respondent did not appear to follow its own internal policies in dismissing him. in his further email to the Tribunal dated 25 July 2025, in the section headed jurisdiction/length of service, the Claimant outlined and agreed that his employment began on 13 March 2023, and he was dismissed for gross misconduct on 6 February 2025 a matter of five weeks before completing two years’ service. In this email, he also referred to not acting dishonestly in relation to the use of the Christmas meal voucher and again asserted that a fair procedure had not been followed to dismiss him.Law
[6]At the time that the Claimant submitted his claim for unfair dismissal, he had to have continuous employment as an employee of the Respondent of two years pursuant to section 108 ERA. Tribunal Conclusion[7]As referred to in the facts section above, the Claimant on his own admission did not have two years continuous service to be able to make a claim for ordinary unfair dismissal pursuant to section 108 ERA. The Claimant was not making a claim for automatically unfair dismissal as his Claim Form quite apparently stated that he was claiming unfair dismissal as a consequence of being dismissed by reason of conduct and he was asserting that the process and procedure that the Respondent relied upon to dismiss him for that reason was not fair. Unfortunately for him, section 108 requires two years continuous service and by the Claimant’s own admission he is five week short of that service.[8]The representations made by him relating to the motivation of the Respondent in dismissing him with less than two years’ service are not relevant to my consideration of the issue. The Claimant is required as a matter of law to have two years continuous service to make the claim for unfair dismissal. The issue of the Respondent’s motivation does not impact on the fact that the Claimant is 5 weeks short of the qualifying service needed to acquire that right. His contract of employment signed on 15 March confirmed clearly commenced on 13 March 2023 and the letter of dismissal dated 6 February 2025 made it clear that his effective date of dismissal for gross misconduct was on 6 February 2025. This meant that he was short of two years continuous service by five weeks.[9]The Claimant’s assertion that the Respondent did not follow a fair processing procedure would only be relevant if the Claimant did have two years continuous service. Because he did not have two years’ service a reference to the Respondent’s failure to follow a fair process and procedure was not relevant to my consideration of the issue.[10]As a consequence, after hearing the evidence at the Tribunal hearing before me, the Claimant’s claim for unfair dismissal is dismissed because the Tribunal does not have jurisdiction to hear it.