Mr Habila Tikon 1st v The Commissioner for Her Majesty’s Revenue and Customs 2nd Respondent: Mitie Limited — 2023

This was an open preliminary hearing on strike out and time limits, heard on the papers and documentary material only. The tribunal took the claimant's case at its highest and considered whether the First Respondent should be released from the proceedings because of a TUPE transfer, and whether the unfair dismissal and detriment claims were out of time.

The tribunal found that there had been a planned TUPE service provision change involving the claimant's security role, with a transfer date of 11 January 2021. It accepted that the claimant did not initially engage in the consultation exercise, but found that he did not object to the transfer and that on 14 January 2021 he positively asked to transfer to the Second Respondent. It also relied on the fact that the Second Respondent paid him, assisted with the SIA licence process, and later dealt with the redundancy exercise. On that basis, the First Respondent was struck out because the tribunal found the claim had no reasonable prospect of success as against it.

On limitation, the tribunal construed the Second Respondent's email of 18 May 2021 and the later correspondence as giving notice of termination effective 30 June 2021, with part of the notice to be worked and part paid in lieu. Applying the objective construction approach referred to in Chapman and the statutory definition in s.97 ERA 1996, it rejected the claimant's case that the effective date of termination was 31 August 2021. The tribunal therefore held that the three-month time limit expired on 29 September 2021, and that the claimant had not shown that it was not reasonably practicable to present the claims in time or that an extension should be granted. It also noted that the claimant did not engage with ACAS within the original time limit.

The s47B detriment claim and the unfair dismissal claim were therefore struck out as out of time. The unlawful deduction from wages claim and the breach of contract claim were not struck out against the Second Respondent, because the tribunal accepted that the final payment on 27 August 2021 meant those claims were presented in time against that respondent only. No deposit order was made because the tribunal did not need to determine the claimant's means.