ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4103729/2020 (V) Preliminary Hearing by Cloud Video Platform (CVP) at Edinburgh on January 2021 Employment Judge: M A Macleod Mr J Montgomery v Caledonia Fire and Security Limited — 2021

The claimant brought a claim for unfair dismissal arising from the termination of his employment by Caledonia Fire and Security Limited. The tribunal recorded that he had been employed from 1 August 2019 to 1 June 2020, so he did not have two years' continuous service. The respondent applied for strike-out under Rule 37(1)(a), and the claimant argued that he was pursuing an automatic unfair dismissal case based on section 104 of the Employment Rights Act 1996 and section 45A of that Act.

The tribunal held that section 45A could not found an unfair dismissal claim. It noted that section 45A is concerned with detriments for refusal to comply with a requirement imposed in contravention of the Working Time Regulations 1998, but subsection (4) disapplies it where the detriment amounts to dismissal. The tribunal also observed that section 45A is not one of the exceptions to the two-year qualifying period in section 108(3) ERA 1996.

The tribunal then considered section 104 ERA 1996, under which a dismissal may be automatically unfair if the reason for dismissal is that the employee brought proceedings to enforce, or alleged infringement of, a relevant statutory right. It found that the claimant had not identified which provision of the Working Time Regulations had allegedly been contravened, nor what requirement he had refused to comply with. On the pleadings before it, the tribunal could not discern a proper statutory basis for an automatic unfair dismissal claim, and concluded that the claim had no reasonable prospect of success.

Mr Brown also argued that the claim was scandalous or vexatious, but the tribunal did not accept that submission. It found that the claimant genuinely believed he had been treated unfairly, and said his conduct fell far short of scandalous or vexatious conduct. The only order made was that the unfair dismissal claim be struck out for lack of reasonable prospects; no remedy award was made.