Tomasz Tym v KTB Rehabilitation — 2021

This was a preliminary hearing on the respondent's applications to strike out the claims or, alternatively, for deposit orders. The claimant's ET1 was presented on 18 May 2020, 11 days after the ordinary deadline. The tribunal accepted that he had contacted Acas in time but had reasonably misunderstood an email of 20 April 2020 about the early conciliation certificate, and therefore extended time for the unfair dismissal and breach of contract claims. It also extended time for the discrimination claims on a just and equitable basis, noting that the extra delay was only 11 days and referring to Adedeji v University Hospitals Birmingham NHS Foundation Trust.

The tribunal struck out the age discrimination claim, the Equal Pay Act claim, and the unfair dismissal claim. Applying the strike-out principles it discussed from Malik and Mechkarov, the tribunal held that the age claim had no reasonable prospect of establishing a link between age and the pay complaint, and the equal pay claim could not succeed because the claimant's own case was that male British-citizen comparators were also underpaid. The dismissal claim failed because the complaint was really about the claimant being paid below market levels rather than a contractual breach, and the tribunal noted that he later moved to another employer at higher pay.

The breach of contract claim remained live. It concerned whether two weeks of the six-week notice period were unpaid or whether the claimant had agreed that the period would be treated as unpaid holiday, and the tribunal said that issue had to be resolved on evidence. The sex discrimination claim and the nationality claim, treated here as race discrimination, were also allowed to proceed without deposit orders. The tribunal said those claims turned on factual questions about the workforce, gender and nationality, pay rates, and the income generated by each individual, and could be revisited after disclosure.