The High Court refused two joined judicial review applications by former security guards who challenged an Employment Appeals Tribunal decision that it lacked jurisdiction to hear their unfair dismissal claims.
The applicants, Nityendra Sharma and Udaiveer Saharan, had worked for J&I Security Limited for about 11 months and six months respectively. Each claimed compensation after alleging dismissal following workplace disputes. Sharma’s claim referred to refusing another night shift after working 14 consecutive nights and to 139 hours’ pay he said was owed. Saharan alleged that he was owed more than 200 hours’ pay and that his employer proposed deducting pay over damage caused during a break-in at a site where he had worked. These were allegations in their claim forms, not findings made by the High Court.
Both men also indicated that they had been penalised and dismissed within the meaning of the Safety, Health and Welfare at Work Act 2005. Their solicitor submitted that dismissal for raising health and safety concerns could be pursued under the Unfair Dismissals Acts despite the applicants’ short service. The Employment Appeals Tribunal had declined jurisdiction in January 2009, reasoning that the claims required one year’s service and that the 2005 Act did not specify a service requirement. The employer did not take part in the tribunal hearing or the judicial review proceedings.
Justice Hedigan held that the one-year continuous-service requirement applied to claims under the Unfair Dismissals Acts based on penalisation under section 27 of the 2005 Act. The judge noted that other legislation expressly disapplied the service requirement for particular grounds of presumed unfair dismissal, while section 27 did not. The court therefore found that the tribunal had correctly concluded it lacked jurisdiction over these claims.
The judge said the tribunal’s written reasons were “telegraphic” and would preferably have been clearer and more expansive. But the applicants understood that the issue was whether the one-year requirement applied, and their challenge in court focused on that point. The judge concluded that the reasons were adequate in the circumstances.
A further argument that the tribunal should have alerted the applicants to the jurisdiction issue before the hearing was not entertained because leave to seek judicial review on that ground had not been granted. The judge also considered it unsustainable, given the solicitor’s advance submissions addressed the service requirement.
The court refused the relief sought. It did not determine whether the alleged workplace events occurred or whether either dismissal was unfair on its merits.