Mr M Keenan v Department for Work and Pensions AT A HEARING — 2019

The claimant applied for Employment Judge Lancaster to recuse himself, saying there was a conflict of interest because he had previously made a complaint about the judge. The tribunal recorded that the claimant had appeared before the judge as a representative in Mr J Malcolm v Delta Academies Trust 1805522/2018, but the judge had no recollection of any later complaint. The recusal application was refused, and the judge said there was no reason not to hear the preliminary issue because it involved a pure question of law.

The only substantive claim determined in this decision was a breach of contract claim about references that were said to have been provided in terms outside the format specified in an agreement made in October 2015, after the claimant’s dismissal by the respondent in September 2014. The tribunal held that, even if the agreement was a contract connected with employment, it had not been entered into at the date of dismissal and the alleged breaches were later still. On that basis the claim did not arise, nor was it outstanding on termination of employment, for the purposes of article 3(c) of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994.

Relying on Miller Bros and FP Butler Ltd v Johnston [2002] IRLR 386, the tribunal concluded that it had no jurisdiction to hear the breach of contract claim. The claim was therefore dismissed. The tribunal noted that only a post-employment victimisation claim founded on the same facts would proceed.