Mrs S Gill v The Bridge (East Midlands) — 2021

At the preliminary hearing on 7 July 2021, the tribunal clarified that Mrs Gill's claims included ordinary unfair dismissal, holiday pay and other payments, discrimination based on having children or a family, and race discrimination based on the treatment she said she received because she was brown Asian. The tribunal recorded that she had been dismissed on 2 June 2020 from her role as Food Poverty Development Officer and that her ET1 was presented on 23 November 2020 after ACAS early conciliation ran from 1 September to 1 October 2020.

The ordinary unfair dismissal claim was struck out because the claimant did not have the two years' qualifying service required by s.108 ERA 1996. The tribunal also found that, even if qualifying service had been available, it was reasonably practicable for her to present the unfair dismissal and pay claims in time. In reaching that conclusion it accepted that she had caring responsibilities and health issues, but found on her own evidence that those matters did not prevent her contacting ACAS on 1 September 2020 or submitting the claim on 23 November 2020.

The tribunal also struck out the holiday pay and other payments claim as out of time. It applied the reasonably practicable test to the WTR, breach of contract and unlawful deduction routes referred to in the reasons, and found that the claimant had not shown that those matters prevented timely presentation.

On the equality claims, the tribunal held that a complaint based on having children or a family could not proceed because there is no such protected characteristic under s.4 Equality Act 2010, and no amendment to advance a sex or indirect discrimination claim was made. By contrast, the tribunal extended time for the race discrimination claim under the just and equitable discretion in s.123 Equality Act 2010, taking account of the length of the delay, the absence of specific prejudice to the respondent, and the hardship to the claimant if the race allegations were not heard. The tribunal did not determine whether earlier incidents formed a continuing act.

The tribunal then considered the individual race allegations under Rules 37 and 39. It ordered £50 deposits for the allegation that the claimant was not given two days' TOIL in February/March 2020 and for the allegation that Miss Fillingham emailed staff on 24 March 2020 and 19 May 2020 to say the claimant's son was sick. The remaining race allegations, including work from home arrangements, annual leave while caring for her son, PPE, furlough, the 19 May 2020 phone call, the worksheet, the 1 June 2020 WhatsApp message, the risk assessment and PPE issues, and the dismissal allegation itself, were not struck out at this stage. The judge noted the contrast between a positive appraisal a few weeks before dismissal and the later termination letter, but left the merits of the race claim for the final hearing.