Ms K Daysh as personal representative of Mr Roland Holmes (deceased) v Travis Perkins Trading Co Ltd — 2023

At the preliminary hearing on 14 February 2023, Employment Judge Emery struck out all claims under Rule 37(1)(a) on the basis that they had no reasonable prospect of success. The claims concerned race discrimination and unfair dismissal arising from Mr Holmes's dismissal on 12 November 2021, and no monetary award was made.

On time limits, the tribunal found that the claim presented on 5 April 2022 was out of time, but accepted evidence that Mr Holmes had been ill, confused, and mistaken about the ACAS certificates. The tribunal said that, if the claims had not been struck out, time would have been extended under s.111(2)(b) Employment Rights Act 1996 because it was not reasonably practicable for him to present the claim in time.

On victimisation, the claimant relied on complaints made in 2019 about racist language and bullying conduct, including a forklift incident. The tribunal accepted that those incidents had occurred and that they had a continuing impact on Mr Holmes, but held that there was no realistic causal link between those matters and the 2021 dismissal. It relied on the contractual paperwork rules, the load-check requirement, and the evidence that other staff had been dismissed for similar misconduct.

On direct race discrimination, the claimant said a grievance submitted on 8 November 2021 was not considered. The tribunal held that the claim was speculative because there was no evidence that Mr Holmes was treated differently from any comparable employee, and no basis to infer that any failure to investigate was because of race. The unfair dismissal claim was also struck out because the tribunal considered the respondent would be able to show a genuine belief in misconduct, supported by a reasonable investigation and a procedurally fair process.