N Stubbs v Grafters Ltd

The Employment Appeal Tribunal held that the employment tribunal erred in striking out the claimant's unfair dismissal complaint insofar as it relied on section 103A of the Employment Rights Act 1996 (an unfair dismissal for having made a protected disclosure). Section 108(3) makes that category of claim an exception to the two‑year qualifying service requirement in section 108(1), so insufficient continuity of employment was not a ground for striking out the s103A claim. The tribunal was correct, however, to strike out the ordinary unfair dismissal claim under section 94 because section 108(1) requires two years' continuous service.

The EAT remitted the s103A complaint to the employment tribunal for further processing and any necessary fact‑finding, leaving time‑limit and reasonably practicable issues for determination at a hearing.

Background and parties:

• The appellant, Mr N Stubbs, brought proceedings alleging unfair dismissal. The respondent is Grafters Ltd (the ET documents also refer to other names and there was some uncertainty in the bundle).
• The employment tribunal (Employment Judge Cadney) struck out the claim on 21 October 2021 because the claimant had less than two years' continuous service. A review by Employment Judge Midgley on 29 October 2021 upheld the strike‑out. The appellant appealed; His Honour Judge Shanks allowed the appeal to proceed to a substantive hearing where His Honour Judge Beard heard the appeal on 31 May 2022.

Nature of the claim and relief sought:

• The claimant alleged unfair dismissal and in the ET1 included material amounting to an assertion that he had made a protected disclosure (he said a manager confined him in a large refrigerator and he complained to his employer about health and safety), invoking relief under section 103A ERA 1996.
• The appellant challenged the strike‑out and relied on the argument that the two‑year qualifying period did not apply to a s103A claim and also raised issues about late presentation and whether it had been reasonably practicable to bring the claim earlier.

Issues framed by the court:

• Whether the employment tribunal was entitled to strike out the claim for lack of the two‑year qualifying period where the claim was, at least in part, under s103A ERA 1996.
• Whether the ordinary unfair dismissal claim required two years' service and thus could be struck out.
• Procedural questions including late presentation and whether the tribunal’s reliance on absence of a response from the respondent affected the decision.

Reasoning and decision:

• The EAT examined the relevant provisions of the Employment Rights Act 1996. Section 108(1) provides the two‑year qualifying requirement for complaints under section 94 (ordinary unfair dismissal). Section 108(3) expressly provides that subsection (1) does not apply where section 103A applies. Consequently, no period of continuous service is required to bring an unfair dismissal complaint based on a protected disclosure under s103A.
• The EAT concluded that striking out the complaint insofar as it relied on s103A was an error of law; there had been no evidential hearing and the tribunal was not in a position, on the papers, to determine the merits of the protected disclosure allegation.
• The ordinary unfair dismissal claim was rightly struck out because the claimant plainly did not satisfy the two‑year continuity requirement in s108(1).
• Issues of late presentation, whether it was reasonably practicable to bring the claim earlier and the absence of a respondent's ET3 were matters to be considered by the employment tribunal at a hearing; those factual determinations were remitted for further processing.

Practical outcome:

• The EAT remitted the s103A unfair dismissal complaint to the employment tribunal for disposal. The ordinary unfair dismissal claim under section 94/section 108(1) remains struck out.

The appeal was allowed in part. The EAT held that the employment tribunal erred in striking out the claimant's unfair dismissal complaint insofar as it relied on section 103A of the Employment Rights Act 1996 because section 108(3) exempts s103A claims from the two‑year qualifying service requirement. The ordinary unfair dismissal complaint under section 94 was correctly struck out for lack of two years' continuous service. The s103A claim was remitted to the employment tribunal for further processing and factual determination of time‑limit and other issues.

Employment Judge Cadney struck out the claim on 21 October 2021. Employment Judge Midgley upheld that strike‑out on review on 29 October 2021. His Honour Judge Shanks permitted the appeal to proceed from the sift. The appeal was heard by His Honour Judge Beard in the Employment Appeal Tribunal on 31 May 2022 ([2022] EAT 134).