Mr J McKenna v Tesco Stores Ltd — 2024

The tribunal recorded that Mr McKenna brought complaints of unfair dismissal and disability discrimination. It noted that section 108 of the Employment Rights Act 1996 requires two years' service for an unfair dismissal complaint unless the case falls within one of the statutory exceptions in section 108(3).

The claimant was employed for less than two years. After being given an opportunity to explain why the unfair dismissal complaint should not be struck out, he argued that the dismissal involved discrimination arising from disability and should therefore be treated as automatically unfair, with exceptional circumstances removing the two-year requirement. The tribunal held that he had confused a disability discrimination complaint under the Equality Act 2010 with an unfair dismissal complaint under the Employment Rights Act 1996.

The tribunal said that a dismissal which is an act of disability discrimination is not one of the categories of automatically unfair dismissal to which the two-year qualifying period does not apply, and that it had no discretion to allow the unfair dismissal complaint to proceed in the absence of the required service. The judgment therefore struck out the unfair dismissal complaint. It expressly stated that the claimant's disability discrimination complaints under the Equality Act 2010 were not affected by the judgment.