Case 2301595/2020 · Employment Tribunal
Mr T Simon v Avance Consulting (Europe) Limited — 2021
- Case reference
- 2301595/2020
- Decision date
- 25 June 2021
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Barker REPRESENTATION
Parties
2 namedClaimant
Mr T Simon
Respondent
Key findings
Tribunal's reasoningThe claimant said he had been employed as a scrum master to provide services to Hexaware for its end client, Sita. The respondent said he was engaged through his personal service company, Honour IT Limited, and was not an employee of the respondent, Hexaware, or Sita. The claimant did not supply documents or particulars in advance of the hearing, while the respondent relied on contractual documents said to support its position.
The Tribunal found that the claimant had failed to establish that he was an employee of the respondent. On that basis it held that it had no jurisdiction to consider the unfair dismissal claim or the breach of contract claim. It also noted that, in any event, the claimant did not have the two years' service required for an unfair dismissal claim. The Tribunal declined to strike out the remaining claims at that stage because the precise nature of the relationship between the parties still needed to be clarified.
The Tribunal dealt separately with limitation. The claimant had been notified of the termination of his engagement on 21 November 2019. ACAS conciliation ran from 20 February 2020 to 11 March 2020, and the ET1 was due by 11 April 2020 but was presented on 20 April 2020, nine days late. The claimant said he had been affected by mental health issues following the dismissal and discrimination he said he had suffered, and that he was unaware of the time limits. Although no medical evidence was provided, the Tribunal accepted that the loss of the role had significantly affected him and contributed to his failure to present the claim in time.
The Tribunal therefore exercised discretion to allow the unlawful deductions claim to proceed under s23(4) Employment Rights Act 1996, and to allow the race discrimination claim to proceed on the basis that the delay was short and a just and equitable extension under s123 Equality Act 2010 was appropriate. No substantive decision was made on the merits of those two claims, and no remedy was awarded in this judgment.
Claims and outcomes
4 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | The Tribunal found the claimant was not an employee within s230(1) Employment Rights Act 1996 and did not have two years' service under s108 ERA 1996, so it had no jurisdiction to determine the unfair dismissal claim. | Dismissed | — | — |
| Breach of contract | This claim was dismissed because the claimant had not established employee status, and the Tribunal therefore had no jurisdiction to hear a breach of contract claim in the Employment Tribunal. | Dismissed | — | — |
| Unlawful deduction from wages | The Tribunal held the claim was presented after the primary limitation period but exercised discretion under s23 Employment Rights Act 1996 to allow it to continue because it was not reasonably practicable to present it in time and it was then presented within a reasonable further period. No merits decision was made. | Other | — | — |
| Race discrimination | The Tribunal held the race discrimination claim was out of time but allowed it to continue under the just and equitable discretion in s123(1)(b) Equality Act 2010. No merits decision was made. | Other | Race | — |
Legal tests applied
6 references- s230(1) Employment Rights Act 1996
- s108 Employment Rights Act 1996
- s23(4) Employment Rights Act 1996
- s123(1)(b) Equality Act 2010
- not reasonably practicable
- just and equitable extension
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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