[1]The application for interim relief is refused because: a) Interim relief is not available for claims of unfair dismissal generally, only in the particular circumstances set out in section 128(1) Employment Rights Act 1996 such as for whistleblowing claims or where the dismissal was for trade union activity, none of which apply here. b) By section 128(2) of that Act, such applications have to be brought within seven days of dismissal, whereas this claim was brought more than four months afterwards. c) The claimant has not in fact made an application for interim relief, he has simply ticked the relevant box on the claim form which states “My claim consists only of a complaint of unfair dismissal which contains an application for interim relief”. There is no mention of interim relief elsewhere in the claim form. d) In any event, the claim does not consist only of a complaint of unfair dismissal, it also includes a claim of race discrimination. In those circumstances the exemption from the requirement to inform ACAS about the claim appears to have been sought in error and the claim form should not have been accepted.[2]It does not follow however that the claim can be rejected now. The Court of Appeal considered such a situation recently in the case of Sainsbury's Supermarkets Ltd v Clark [2023] EWCA Civ 386, [2023] IRLR 562]. It was decided that where Case Number 6027626/2025 2 of 3 a claim was accepted without the claimant having complied with the requirement to first inform ACAS about the claim, 'the time for rejection of the claim has passed'.[3]The Tribunal does however have power under rule 38 of the Employment Tribunal Rules of Procedure to strike out a claim in those circumstances. The respondent has applied to strike out the claims on various grounds but rule 53 of the Employment Tribunal Rules of Procedure provides: (2) The Tribunal must give the parties reasonable notice of the date of the preliminary hearing. In the case of a hearing involving any preliminary issue, this must not be less than 14 days’ notice of the date of the preliminary hearing and the notice must specify the preliminary issues that are to be, or may be, decided at the hearing.[4]A further preliminary hearing will therefore take place, in public, on 25 November 2025 at 1400. As today, the hearing will take place by video and the parties will be sent a link to the hearing shortly beforehand.[5]At that hearing, the Tribunal shall consider whether to strike out the claim, in whole or in part, on the basis that: a) the claimant did not have the necessary two years’ service to bring a claim of unfair dismissal; b) the claim was presented outside the normal period of three months from the date of dismissal; and/or c) the claim is an abuse of the Tribunal’s process because the above exemption to early conciliation was not validly claimed.[6]No oral evidence will be considered. The Tribunal will simply hear from each side in turn before making a decision.[7]The parties may submit any relevant documents they wish to rely on in a file for the Tribunal, copied to each other, at least seven days before the hearing. Those documents may relate to length of service, reasons for not submitting the claim earlier and reasons for mistakenly claiming this exemption.[8]In relation to the time limit issue, the test is whether there is no reasonable prospect of the claimant succeeding in showing that the claim was in time.[9]Alternatively, the Tribunal may make a deposit order – an order requiring Mr Nertey to pay a deposit as a condition of being allowed to proceed with an allegation or argument – if it concludes that Mr Nertey has little reasonable prospect of success in relation to time limits or length of service.[10]For claims of unfair dismissal time can be extended where it was reasonably practicable (i.e. reasonably feasible) for the claim to have been made in time, and it was then submitted within a further reasonable period. Case Number 6027626/2025 3 of 3[11]For the claim of race discrimination time can be extended where it would be just and equitable to do so. (Since none of the allegations are within three months of dismissal there is no scope to argue that they were part of a series of acts which ended within that three-month period.)[12]By agreement, the name of the respondent is changed to Angel Approved Limited.
REASONS
The Tribunal gave oral judgment with reasons in this claim on 25 November 2025. The written reasons for that judgment are set out below. The Tribunal’s judgment given on 25 November 2025 was that the claim was struck out under Employment Tribunal Rule 38(1)(a) because it had no reasonable prospect of success. REASONS PREAMBLE[1]The claimant presented a claim on 25 July 2025 following the termination of his employment with the respondent as a healthcare assistant on 20 March 2025. His employment had begun on 1 November 2023. He had therefore been employed for less than 17 months.[2]The claimant claims were for unfair dismissal and race discrimination. The factual basis for the claim was set out briefly and somewhat unclearly in box 8.2 of the claim form. He said that he:(1) had been subjected to unsubstantiated claims;(2) had been subjected to numerous disciplinary hearings based on fabricated stories;(3) had been forced to take a covid test and wear a mask when he had a common cold in September 2024;(4) had faced a false allegation that the Covid test was positive;(5) had been subjected to derogatory language by a director;(6) had faced expressions of strong dislike from the HR manager and the compliance manager;(7) had been falsely accused of taking money from colleagues in August 2024. Other information was given in narrative form in a three-page document attached to the claim form. Case Number: 6027626/2025 2[3]The claimant did not obtain (and has still not obtained) an ACAS early conciliation certificate before presenting his claim. Rather he ticked the box “my claim consists only of a complaint of unfair dismissal which contains an application for interim relief. (See guidance)”[4]In fact his claim did not consist only of a complaint of unfair dismissal and did not contain an application for interim relief.[5]However, because of what the claimant had said in the claim form, an interim relief hearing took place before Employment Judge Fowell on 13 August 2025. The application for interim relief was refused on the basis that:(1) interim relief was not available for the claims brought by the claimant;(2) alternatively, the application was brought several months out of time if there was an application;(3) alternatively, there was in fact no application for interim relief in the claim form. The purpose of the preliminary hearing today[6]Employment Judge Fowell listed today’s preliminary hearing to consider the following issue.[7]Whether the Tribunal should strike out the claim, in whole or in part, on the basis that:a. the claimant had insufficient service to bring a claim of unfair dismissal;b. the claim was presented outside the normal period of three months from the date of dismissal; and/orc. the exemption to early conciliation was not validly claimed.[8]EJ Fowell ordered that no oral evidence would be considered. The Tribunal would simply hear submissions from each side in turn before making a decision. The law The right not to be unfairly dismissed
The law
[9]Section 108 of the Employment Rights Act 1996 provides that the right not to be unfairly dismissed contained in section 94 does not apply unless the employee has been continuously employed for a period of not less than two years ending with the effective date of termination. There are exceptions to this requirement, including where a claimant says that they have been dismissed for making a protected disclosure. Acas early conciliation[10]Section 18A of the Employment Tribunal Act 1996 (“section 18A”) requires a prospective claimant to contact ACAS before instituting relevant proceedings. The proceedings in this claim are all relevant proceedings. Relevant proceedings may be instituted without complying with this requirement in “prescribed cases”. There are as such exceptions to the requirement to contact ACAS but none are relevant to the facts of this case. Case Number: 6027626/2025 3[11]The question of how the Tribunal should deal with a claim which has been accepted by the Tribunal notwithstanding the fact that the claimant failed to comply with section 18A has recently been considered by the court of appeal in Abel Estate Agent Limited v Reynolds EWCA Civ 1357.[12]Underhill LJ concluded that the requirements imposed by section 18A go to jurisdiction and that accordingly a claim which had wrongly been accepted by the Tribunal should have subsequently been dismissed or struck out because of the claimant’s failure to comply with them.[13]Underhill LJ concluded that in such circumstances the claim could be struck out under either rule 38 or rule 27 (see paragraph 72 of his judgement). The Tribunal’s rules of procedure[14]Rule 38 of the Tribunal’s rules of procedure provides that: 38. Striking out(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out).(2) A claim, response or reply may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing… The parties submissions today[15]The claimant’s submissions may reasonably be summarised as follows:a. So far as the question of whether he had the necessary qualifying service to bring an unfair dismissal claim was concerned, he explained that in his view he had been dismissed because he had made a protected disclosure to the respondent. The respondent feared that he would make a report to the relevant regulator. The grounds of claim attached to the claim form do not clearly identify such a claim, but I Case Number: 6027626/2025 4 accept that there are clear hints of one in the last paragraph on their page 2 in the first paragraph on their page 3.b. So far as the question of time limits was concerned, he explained that he was suffering from serious illness and that as a migrant he did not have access to legal advice. He knew nothing about time limits. He had felt intimidated by his employer. This explained the lateness of his claim.c. So far as his failure to contact ACAS before beginning his claim was concerned, he raised the same points as in relation to the lateness of his claim.[16]The respondent did not attend and so I heard no submissions from it.
Conclusions
[17]I have concluded that the whole of the claim should be struck out on the ground that it has no reasonable prospect of success because the claimant failed to comply with the requirements of the ACAS early conciliation regime as required by section 18 A.[18]Applying Reynolds, the result of this failure is that the Tribunal has no jurisdiction to determine the claim. If the Tribunal has no jurisdiction to determine the claim, it can have no reasonable prospect of success. The facts (if such they be) that the claimant was ill, afraid of his former employer and ignorant of his rights do not provide an escape clause.[19]In the circumstances it is not necessary for me to decide whether to strike out the unfair dismissal on the basis that it has no reasonable prospect of success because of the claimant’s length of service. However, if it had been necessary, I would not have struck his unfair dismissal claim out on this basis. This is because the claim form hints at a claim that he was dismissed because he made protected disclosures.[20]In the circumstances, it is also not necessary for me to consider whether the claimant should be struck out on the basis that the claimant has no reasonable prospect of persuading the Tribunal that it was brought in time. However, again, if it had been, I would not have struck his complaints out on this basis. The claimant has raised factual reasons which would require proper examination of the reason for the delay. I cannot conclude that such arguments would not have any reasonable prospect of success.[21]The whole of the claimant’s claim is therefore dismissed and this judgment brings it to an end. If the claimant wishes to pursue the matter which he raises against his former employer further, he will need to contact ACAS and complete ACAS early conciliation. Having done so, he will then need to issue a new claim form. Case Number: 6027626/2025 5 Approved by EJ Evans on 12 January 2026