Mr Tekena Nemi v Asda Stores Limited — 2018

At an open preliminary hearing, the tribunal considered the respondent's application for strike out and/or a deposit order. Although the claim form only ticked unfair dismissal, it also referred to repudiatory breach of contract and failure to make reasonable adjustments, and the case had been coded as unfair dismissal, disability discrimination and breach of contract.

The tribunal struck out the disability discrimination claim. It found that the reduced-hours issue related to a period before February 2018, was well out of time, and that it would not be just and equitable to extend time. On the reasonable adjustments allegation about working in the checkout area, the tribunal found the claim had no reasonable prospect of success, noting that the claimant would need to establish a PCP causing substantial disadvantage or unfavourable treatment and that it was highly probable there was little or no relevant differentiation between the roles relied on.

The constructive unfair dismissal claim was allowed to proceed. The tribunal understood that claim to be based on breach of the implied term of mutual trust and confidence up to and including the mediation meeting on 24 September 2018, which was capable of being presented as a last straw. It held that the four days between the mediation and resignation could be argued to be too short to constitute affirmation, so it could not find that this head of claim had little reasonable prospect of success.