Ms S Samrai v Choices Care Ltd — 2021

The tribunal heard a preliminary hearing on whether Ms S Samrai's unfair and wrongful dismissal claims were out of time on the Respondent's case that she resigned by telephone on 17 December 2020. After reviewing the claimant's and respondent's telephone records, the absence of any contemporaneous notes, the letter dated 21 December 2020, and the delayed P45, the judge preferred the Claimant's evidence and found that the alleged 17 December call did not take place. The tribunal also accepted that the Claimant did not receive the 21 December letter.

The tribunal found that the effective date of termination was 12 April 2021, when the Claimant delivered a fit note and was told by Ms Hyde that she no longer worked for the Respondent. On that basis, the unfair dismissal and wrongful dismissal claims were brought in time. The judge did not make any positive finding on the exact words spoken on 12 April or on whether the termination on that date was a dismissal, leaving that issue for any later hearing if still disputed.

The tribunal allowed the Claimant's application to amend the claim to add a section 15 Equality Act 2010 claim of discrimination arising from disability, based on her case that she was asthmatic, had to shield during the Covid-19 pandemic, and was dismissed because of that absence. Applying Selkent and the balance of prejudice, the judge extended time on a just and equitable basis, limited the amendment to the solicitor's e-mail of 30 November 2021, and directed amended Grounds of Resistance and a further preliminary hearing. The merits of the disability discrimination claim were not determined at this hearing.