Claimant v BMW (UK) Manufacturing Limited — 2021

The claimant was employed by the respondent as an Assembly Associate and was dismissed after failing to return to work following a holiday to Jamaica. He said he had been detained in Jamaica for reasons beyond his control and that the dismissal was unfair and discriminatory. The hearing was a preliminary hearing dealing with the respondent's application to strike out the claims or, alternatively, for a deposit order.

For unfair dismissal, the tribunal found that although the claimant had worked for the respondent since 2011, he accepted that he had previously been an agency worker and was only an employee from 1 December 2018. The tribunal found the effective date of termination was 21 February 2020, so he did not have the two years' continuous service required by section 108 of the Employment Rights Act 1996. The tribunal also found that the claim was presented about two months late and that it was not persuaded it had not been reasonably practicable to present it in time.

For race discrimination, the tribunal recorded that the claimant is black and had ticked race discrimination on his ET1, but found that the alleged discriminatory acts were not particularised. The tribunal treated 7 February 2020, the date of the dismissal letter, as the last possible date of alleged discrimination and found the claim was issued more than two months late. It decided it was not just and equitable to extend time, taking into account the delay, the claimant's ability with assistance to communicate and complete ACAS early conciliation from Jamaica, and the lack of identified specific acts said to amount to less favourable treatment because of race.