Case 2402158/2020 · Employment Tribunal
Mr R Diamantini v Wilmslow Catering Ltd PRELIMINARY HEARING — 2021
- Case reference
- 2402158/2020
- Decision date
- 1 February 2021
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Grundy
Parties
2 namedClaimant
Mr R Diamantini
Key findings
Tribunal's reasoningThis was a preliminary hearing before Employment Judge Grundy sitting alone on 15 January 2021. Mr R Diamantini had worked for Wilmslow Catering Ltd from 7 April 2018 as a waiter. The tribunal recorded that the case concerned race discrimination and harassment, discrimination due to marriage/perceived sexual orientation, failure to provide written terms and conditions, and issues about National Minimum Wage and unpaid wages. The tribunal also recorded that the last alleged discriminatory act and any unlawful deduction occurred on or before 20 June 2019, while the claim was presented on 14 March 2020.
On the unlawful deduction claim, the tribunal accepted that the claimant had been unwell from 20 June 2019 and had fit notes covering 24 June to 6 December 2019. It also accepted a hospital admission from 20 September to 3 October 2019 and noted a payment for one shift in mid-August 2019. Even so, it found there was no explanation for the period from mid-November or early December through to 14 March 2020. Applying the reasonable practicability test under s.23(4) ERA 1996 and the authorities it cited, the tribunal held that time should not be extended and struck out the unlawful deduction claim for want of jurisdiction.
The discrimination claims were also out of time. The tribunal accepted that the claimant had been ill for part of the relevant period and that there was a serious allegation of assault, but it found the allegations lacked clarity and coherence and that there was no explanation for the gap from December 2019 through to 14 March 2020. Applying the just and equitable test under s.123(1)(b) Equality Act 2010, and taking into account the extent of delay and prejudice, it refused to extend time. The P45 point was not sufficiently particularised as discrimination, and the tribunal said there was no freestanding claim in relation to a P45.
The complaint about failure to provide written terms and conditions was dismissed because it was not a freestanding claim. No remedy was awarded because all live claims were either struck out for lateness or dismissed on jurisdictional grounds.
Claims and outcomes
6 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unlawful deduction from wages | Presented out of time; the tribunal found it was not reasonably practicable to present the claim in time and refused to extend time under s.23(4) ERA 1996. | Struck out | — | — |
| Race discrimination | The discrimination claims were presented out of time and the tribunal refused a just and equitable extension under s.123(1)(b) Equality Act 2010. | Struck out | Race | — |
| Harassment | The judgment grouped the harassment allegation with the race allegations and struck it out for lateness; no merits findings were made. | Struck out | Race | — |
| Marriage or civil partnership discrimination | The tribunal referred to discrimination due to marriage/perceived sexual orientation and struck the discrimination claims out as out of time. | Struck out | Marriage / civil partnership | — |
| Sexual orientation discrimination | The tribunal referred to discrimination due to marriage/perceived sexual orientation and struck the discrimination claims out as out of time. | Struck out | Sexual orientation | — |
| Breach of contract | The complaint about failure to provide written terms and conditions was dismissed because it was not a free-standing claim and fell with the other jurisdictional rulings. |
Legal tests applied
8 references- s.23(4) ERA 1996 reasonable practicability test
- Porter and Bandridge [1978] ICR 943
- RBS plc v Theobald UKEAT/0444/06
- Asda Stores Ltd v Kauser UKEAT/0165/07
- Cullinane v Balfour Beatty Engineering Services Ltd UKEAT/0537/10
- s.123(1)(b) Equality Act 2010 just and equitable test
- Robertson v Bexley Community Centre 2003 IRLR 434
- s.33 Limitation Act 1980 factors
Official outcome judgment PDF
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