Case 8000068/2023 · Employment Tribunal
EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 8000068/2023 Held via Cloud Video Platform (CVP) in Dundee on July 2023 Employment Judge W A Meiklejohn Ms Haeyun Lee
At the open preliminary hearing on 21 July 2023, the tribunal dealt with whether the claimant could pursue constructive unfair dismissal and whether her direct race discrimination claim was in time. The claimant appeared in person with a Korean language interpreter, and the respondent was represented by a solicitor.
The constructive unfair dismissal complaint was dismissed because the tribunal found that, by the effective date of termination, the claimant did not have two years' continuous employment. The judge noted possible exceptions based on working time and assertion of statutory rights, but did not revisit the earlier case-management decision that the working-hours and staff-accommodation points were to be treated as breach of contract matters.
On the race discrimination issue, the tribunal identified the refusal of the claimant's holiday request around 22 August 2022 as the relevant act for limitation purposes. On that basis the primary limitation period expired on 21 November 2022, and early conciliation beginning on 8 December 2022 did not save the claim under section 140B. The claim was therefore out of time unless the tribunal exercised the just and equitable discretion under section 123(1)(b) EqA 2010.
The tribunal extended time to 18 February 2023. It accepted the claimant's evidence that she did not know another employee had been granted leave until later, that she believed she had to await the grievance appeal outcome, and that she relied on ACAS communications, including an email dated 17 February 2023 indicating that she had one month to submit her tribunal claim. The judge considered the claim's merits only on the papers and found that there was not enough material to make a confident assessment, but concluded that the balance of factors favoured extending time so the claim could proceed to a final hearing. The judge also made a case-management order requiring the claimant, by 25 August 2023, either to confirm that she was not pursuing harassment or to apply to amend the ET1 to add a harassment complaint.
| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Constructive dismissal | Dismissed for want of jurisdiction because the claimant had not completed two years' continuous employment by the effective date of termination. The tribunal noted possible statutory exceptions based on working time and assertion of statutory rights, but did not revisit the earlier case-management categorisation of the related points as breach of contract issues. | Dismissed | — | — |
| Race discrimination | The tribunal held that the holiday-request refusal around 22 August 2022 was the act complained of, so the primary three-month time limit expired on 21 November 2022. Early conciliation began on 8 December 2022, so section 140B did not stop time running, but the tribunal extended time on a just and equitable basis to 18 February 2023 and allowed the claim to proceed to a final hearing. | Other | Race | — |
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