Case 3300008/2018 · Employment Tribunal
In person For the v Nikolas Clarke, Solicitor — 2017
- Case reference
- 3300008/2018
- Decision date
- 21 November 2017
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Tuck Appearances
- Venue
- Watford
Parties
2 namedClaimant
In person For the
Respondent
Key findings
Tribunal's reasoningMs Foster presented an ET1 on 1 January 2018 alleging unfair dismissal only. The tribunal recorded that she had started work as a teaching assistant on 22 January 2012, was told on 26 May 2017 that her employment would end on 21 July 2017, and then went through ACAS early conciliation on 11 September 2017. As a result of that process the respondent decided to reinstate her, she was told on 22 September 2017 that she would return to work, and she in fact returned on 19 October 2017. The tribunal also recorded that she received back pay on 15 November 2017.
The tribunal held that the effect of the Employment Protection Continuity of Employment Regulations 1996 was that her continuity of employment was preserved on reinstatement. It found that, as at the date the ET1 was presented, she was no longer an employee who stood dismissed, and that her employment had effectively been revived in a way similar to a successful internal appeal. On that basis, the tribunal said she could not maintain a complaint that her employment had been terminated by the employer.
In the alternative, the tribunal held that any complaint based on a dismissal on 21 July 2017 was out of time. Even allowing for the ACAS early conciliation extension, the claim should have been presented by 21 November 2017, and the tribunal was not satisfied that it had not been reasonably practicable to present it earlier. It rejected the explanation that the matter had been in the hands of solicitors, noting that the claimant had been able to engage with ACAS and secure reinstatement.
The tribunal also noted that the claimant and her advisers had sought compensation for injury to feelings, but said that such loss is not within the tribunal’s jurisdiction when determining an unfair dismissal claim. It therefore concluded that the respondent had met the rule 37 threshold and struck out the claim for unfair dismissal.
Claims and outcomes
1 finding recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | Struck out under rule 37 as having no reasonable prospect of success. The tribunal also found that, by the time the ET1 was presented on 1 January 2018, reinstatement had preserved continuity of employment and the claimant was no longer dismissed, and that any claim based on 21 July 2017 was out of time under s.111 ERA 1996. | Struck out | — | — |
Legal tests applied
5 references- rule 37 Employment Tribunal Rules of Procedure
- s.95 Employment Rights Act 1996
- s.111 Employment Rights Act 1996
- Employment Protection Continuity of Employment Regulations 1996 reg 3.2
- Dunnachie v Kingston-Upon-Hull [2004] UKHL 36
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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