In person For the v Respondent — 2020

At the preliminary hearing on 26 November 2019, Employment Judge Britton sat alone and first dealt with the discrimination/harassment complaint. The judge recorded that the claim was, in substance, a section 26 Equality Act 2010 harassment complaint made in writing to the employer on 3 February 2016, but the ET1 was not presented until 5 December 2018. The tribunal held that the complaint was therefore out of time by about 2 years and 10 months, that there was no continuing act after the February 2016 complaint, and that it was not just and equitable to extend time. The discrimination-based claim was dismissed for lack of jurisdiction.

The judge then considered the remaining claims, which were not finally determined at this hearing. The claimant said that when he was moved from Derby to Queens Drive, Nottingham, he had agreed to the transfer on the basis that he would receive £9 per hour rather than £8 and travelling expenses, and he said those terms were later not honoured. The tribunal treated those issues as triable claims for unlawful deduction from wages and breach of contract, and held that the existing ACAS early conciliation certificate was sufficient to cover them.

On unfair dismissal, the tribunal refused both strike out and a deposit order. It accepted that two colleagues had said the claimant smelled strongly of alcohol at about 5:00 am on 26 September 2018, and it noted the claimant's own acceptance that he had drunk the night before together with his case that medical matters such as hepatitis C might explain the smell. The judge referred to the range of reasonable responses test and Taylor v OCS Group Ltd when explaining that there was a triable issue about the fairness of the process, including the fact that the appeal hearing had not been held. No final liability or compensation decision was made at this stage.