EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 8000181/20225 Held at Aberdeen on May 2023 Employment Judge N M Hosie Mr Z Dzingus v W & W Mackie Ltd — 2023

Mr Dzingus brought a claim of automatic unfair dismissal under s.103A ERA 1996, alleging that he had made protected disclosures. The respondent admitted the dismissal but said the reason was gross misconduct. The hearing before Employment Judge Hosie on 17 May 2023 was a preliminary hearing concerned with time bar, strike out, and fair hearing issues.

The tribunal decided that the effective date of termination was 7 August 2022. It preferred the respondent's evidence that the dismissal letter dated 6 August 2022 had been sent by first class post and would probably have been received the following day. On that basis, and even if the date were 12 August 2022 as some respondent records suggested, the ACAS notification on 17 November 2022 was outside the three-month time limit. The tribunal held the claim was time-barred and dismissed for want of jurisdiction, and it refused to extend time under s.111(2) ERA 1996 because the claimant knew of the limit, had taken legal advice, and had no impediment to presenting the claim in time.

The tribunal also dealt with the respondent's strike-out application. Taking the claimant's averments at their highest, it held that they did not disclose a qualifying disclosure under s.43B ERA 1996 and that what was described appeared to be a personal workplace issue rather than a disclosure made in the public interest. The claimant's late amendment application was refused under Selkent Bus Co Ltd v Moore, and the tribunal relied on Rule 37(1)(a) in concluding that the claim had no reasonable prospect of success. It recorded that there was no basis for strike out under Rule 37(1)(e).