Mr D Uzunov v ABM Technical Solutions OPEN PRELIMINARY HEARING — 2021

At this open preliminary hearing, Employment Judge Brown accepted the respondent's ET3 out of time. The respondent explained that the claim had been overlooked during the pandemic, filed a response promptly once the papers were located, and showed a defence on the merits. The tribunal relied on the usual extension-of-time authorities, including Pendragon and Kwik Save, and held that allowing the response would avoid unfair prejudice to the respondent.

The claimant's race and disability discrimination claims were struck out. Although the tribunal located the rider attached to the ET1, the pleadings and later correspondence still did not identify the race or disability relied on, any comparator, any specific act of less favourable treatment, or any facts showing why any treatment was because of race or disability. The claim for 'other payments' was also struck out after the tribunal construed it as a redundancy payment claim, because no redundancy facts were pleaded and the claimant did not show entitlement to another redundancy payment.

The automatic unfair dismissal claim under s.152 TULRCA 1992 and the ordinary unfair dismissal claim were not struck out. The tribunal accepted that the ET1 rider raised a possible TUPE transfer issue, so the question of whether the claimant had sufficient service for an ordinary unfair dismissal claim was left to the final hearing. It also held that there was a core dispute of fact about the reason for dismissal, including the claimant's case that union contact prompted the dismissal and the respondent's case that he was dismissed for serious health and safety breaches.

Although the unfair dismissal claims were allowed to continue, the tribunal ordered deposits of £150 for the automatic unfair dismissal claim and £300 for the ordinary unfair dismissal claim. It considered there was little reasonable prospect of success on the claimant's assertions that the audio and photographic evidence was fabricated, that dismissal was predetermined, and that alleged lack of training made dismissal unfair in the circumstances. The respondent's separate strike-out application based on unreasonable conduct was refused because the single late-night email relied on was not enough to make a fair hearing impossible, although the claimant was warned about future non-compliance.