Claimant v BMW Hams Hall Motoren GMBH
Outcome
Individual claims
Preliminary hearing determined only jurisdictional issue of whether tribunal had jurisdiction to hear claim. Tribunal found effective date of termination was 3 August 2023 and claim filed after notice given (9 February 2023) but before EDT, therefore within jurisdiction under s.111(3) ERA. Strike-out application refused.
Race discrimination claim was included in the ET1 but not subject to the preliminary hearing which dealt only with jurisdiction for unfair dismissal. No determination made on merits.
Wrongful dismissal claim included in ET1 but not subject to the preliminary hearing which dealt only with jurisdiction for unfair dismissal. No determination made.
Facts
Claimant employed from April 2015, promoted several times. Following anonymous whistleblowing complaints in late 2022/early 2023, claimant was suspended and dismissed on notice on 9 February 2023. Under his contract, he had access to multiple appeal stages which suspended dismissal action. He exercised these appeal rights, remaining on full pay until final appeal refused on 3 August 2023. Claimant commenced early conciliation on 2 May 2023 and filed ET1 on 10 July 2023 claiming unfair dismissal, race discrimination and wrongful dismissal. Respondent applied to strike out unfair dismissal claim as premature.
Decision
Tribunal found that while dismissal notice was given on 9 February 2023, the effective date of termination was 3 August 2023 when contractual appeals were exhausted. Applying Wishmorecross School v Malado, the tribunal held it had jurisdiction under s.111(3) ERA to hear claims presented after notice given but before EDT. Strike-out application refused.
Practical note
A claim for unfair dismissal filed after notice of dismissal is given but before the effective date of termination (where dismissal is deferred pending contractual appeals) falls within tribunal jurisdiction under s.111(3) ERA.
Legal authorities cited
Statutes
Case details
- Case number
- 1304952/2023
- Decision date
- 8 August 2024
- Hearing type
- preliminary
- Hearing days
- 1
- Classification
- procedural
Respondent
- Sector
- manufacturing
- Represented
- Yes
- Rep type
- barrister
Employment details
- Service
- 8 years
Claimant representation
- Represented
- No