N Stubbs v Grafters Ltd

A claimant alleging automatic unfair dismissal for making a protected disclosure under Employment Rights Act 1996, section 103A, is exempt from the two-year qualifying period. Section 108(3) disapplies section 108(1) where section 103A applies. A tribunal therefore errs in striking out such a claim solely because the claimant lacks two years’ continuous employment.

The statutory qualifying period remains applicable to an ordinary unfair-dismissal complaint. Courts must apply that requirement as enacted. Whether a protected-disclosure dismissal claim was presented in time, including whether earlier presentation was reasonably practicable, ordinarily requires evidence and is for the employment tribunal.

The claimant appealed against an employment tribunal’s strike-out of his unfair-dismissal claim. He had worked between March and October 2017 and presented his claim in February 2021. The tribunal struck out the claim because he had less than two years’ continuous employment. A review did not alter that decision.

The claim form also referred to dismissal for making a protected disclosure. The claimant said that he had raised health-and-safety concerns after an incident involving a manager. The central issue was whether the two-year qualifying period permitted the tribunal to strike out that aspect of the claim before a response had been required.

1. Appeal allowed in part. The strike-out was legally erroneous insofar as it disposed of a claim under section 103A of the Employment Rights Act 1996. Section 108(1) imposes a two-year qualifying period for the ordinary unfair-dismissal right under section 94. However, section 108(3), including paragraph (ff), expressly disapplies that requirement where section 103A applies.

2. The claim form sufficiently indicated a complaint that dismissal was because the claimant had made a protected disclosure. The structure of the form explained why that complaint had been overlooked, but did not justify striking it out for lack of qualifying service. The EAT could not assess its factual strength without evidence. The alleged disclosure, the claimant’s employment status, whether he was dismissed, and the causal connection were matters for the tribunal.

3. The ordinary unfair-dismissal claim was correctly struck out. On the pleaded employment dates, the claimant did not have two years’ continuous employment. His contention that agency workers could not attain the qualifying period did not permit a court to disregard or rewrite the clear statutory requirement.

4. The issue whether late presentation was reasonably practicable requires evidence and is for the employment tribunal. The protected-disclosure unfair-dismissal claim was remitted to the tribunal for processing. The ordinary claim remained struck out.

• Employment Appeal Tribunal: allowed the appeal in part and remitted the section 103A claim: [2022] EAT 134.
• Employment Tribunal: Employment Judge Cadney struck out the claim on 21 October 2021 for lack of two years’ continuous employment. Employment Judge Midgley refused to reverse that decision on review on 29 October 2021.