ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: S/4118317/2018 Held at Edinburgh on December 2018 Employment Judge: W A Meiklejohn Mr Darren Metcalfe v ’s wife st For Fencing (Erectors & Consultants) Limited — 2018

At the preliminary hearing on 21 December 2018, Employment Judge W A Meiklejohn considered whether Mr Darren Metcalfe's unfair dismissal claim should be struck out. The claimant's employment started on 3 April 2017. The parties differed on the termination date, with the claimant saying he received the dismissal letter on 9 August 2018 and the respondent saying the employment ended on 13 April 2018, but the tribunal held that even on the claimant's account he did not have two years' continuous service.

Because the claimant lacked two years' service, the tribunal held that it had no jurisdiction to hear an ordinary unfair dismissal claim. Mrs Metcalfe, representing the claimant, argued that the matter could proceed as an automatically unfair dismissal under section 104 ERA 1996 because the claimant had sought payment of statutory sick pay. The tribunal held that non-payment of SSP was not a 'relevant statutory right' for section 104 purposes, so that basis could not support jurisdiction.

The tribunal also considered whether the claimant might rely on section 103A ERA 1996 on the basis of a protected disclosure. It noted that the ET1 gave no notice of such a claim and that the dismissal letter referred to an alleged failure to follow sickness call-in procedures. The tribunal accepted that an allegation about compliance with SSP obligations might potentially amount to a protected disclosure under section 43B ERA 1996, but concluded that there was no reasonable prospect of showing that the reason or principal reason for dismissal was that disclosure. The unfair dismissal claim was therefore struck out under Rule 37(1)(a) of the 2013 Rules.