Claimant v Out of this World Kids Club Limited
Outcome
Individual claims
Respondent applied for strike out arguing breaches were out of time, but judge held that time runs from effective date of termination not alleged breaches, so claim was in time. Application refused as strike out bar not met.
Respondent argued claim was out of time and not credible as no grievance was raised. Judge found that while just and equitable extension was not strong, it was possible, and there was insufficient evidence without hearing to determine credibility. Strike out and deposit order refused.
As with direct discrimination claim, respondent argued out of time and lack of grievance. Judge found possibility of just and equitable extension and insufficient evidence to assess credibility without full hearing. Strike out and deposit order refused.
Wages claim was expressly excluded from the strike out application and deposit order consideration by Judge Benson. No determination made on this claim at this preliminary hearing.
Facts
Ms Jones brought claims of constructive dismissal, direct disability discrimination, and disability-related harassment against a kids club operator. The respondent applied to strike out the claims or obtain deposit orders, arguing discrimination claims were out of time and that the claimant had been convicted of assaulting someone at the respondent. The claimant failed to attend the preliminary hearing and had made a late postponement application which was refused. A bundle of 193 pages was available but no witness statements were before the judge.
Decision
Employment Judge Anderson refused all applications for strike out and deposit orders. The constructive dismissal claim was in time as time runs from termination not alleged breaches. For the discrimination claims, while they appeared out of time, the judge found a just and equitable extension was possible given the liberal regime, the claimant's stated disability, and lack of forensic prejudice to the respondent, though it was not a strong possibility. The judge found insufficient evidence to determine credibility without a full hearing.
Practical note
Strike out and deposit order applications must be forensically precise and properly evidenced; time limits in constructive dismissal run from termination not the alleged breaches, and judges cannot make credibility findings on paper without hearing live evidence, even where a claimant fails to attend and has been convicted of a workplace assault.
Legal authorities cited
Statutes
Case details
- Case number
- 2408561/2022
- Decision date
- 10 December 2024
- Hearing type
- preliminary
- Hearing days
- 1
- Classification
- procedural
Respondent
- Sector
- education
- Represented
- Yes
- Rep type
- lay rep
Claimant representation
- Represented
- No