Ms L Jones v Out of this World Kids Club Limited RECORD OF A PRELIMINARY HEARING — 2024

This was a public preliminary hearing on 7 June 2024 before Employment Judge Anderson. The claimant did not attend, a late postponement request had already been refused, and there were no witness statements before the tribunal. The respondent sought strike out and/or deposit orders under Rule 37(1)(a) and Rule 39(1) in respect of constructive unfair dismissal, direct disability discrimination, and disability-related harassment. The tribunal applied the usual high strike-out threshold and the deposit-order principles drawn from Hemdan v Ishmail, Sami v Avellan, Van Rensburg v Royal Borough of Kingston-upon-Thames, and Wright v Nipponkoa Insurance (Europe) Ltd, and it also considered the Equality Act 2010 time-limit provisions in section 123.

On the disability claims, the tribunal said that on the face of the papers the claims were out of time, but it could not say that an extension of time under the just and equitable test had little reasonable prospect of being granted. It noted matters said to support extension, including the claimant's stated disability, the overlap with the period covered by the constructive dismissal claim, the absence of identified forensic prejudice to the respondent, and the prejudice to the claimant if the discrimination claims could not proceed. It also noted matters said to count against extension, including that the burden lay on the claimant, that there was no entitlement to an extension, the apparent June-to-October delay, and the fact that the claimant had obtained new employment shortly after resignation. The tribunal did not treat the absence of a contemporaneous grievance as enough by itself to justify strike out or a deposit order.

On the constructive unfair dismissal claim, the tribunal held that time ran from the effective date of termination, not from the alleged breaches, so the claim was in time. It treated issues raised about affirmation, the respondent's reliance on a conviction for assault, and the factual basis of the alleged breaches as matters that required evidence at trial rather than a summary disposal at the preliminary hearing. The tribunal also noted that the alleged assault might be relevant to remedy, including any reduction of the basic award and the compensatory award, but it did not decide that issue. The applications for strike out and deposit orders were therefore refused and the claims were left to proceed.