Server's unfair dismissal claim struck out after failing to engage with tribunal
A restaurant server with less than two years' service had his unfair dismissal claim struck out after he failed to attend hearings or comply with tribunal orders. The tribunal also dismissed his race discrimination claim due to unreasonable conduct.
2 min read · Last updated 19 May 2026
Case details
Key facts
- The claimant worked as a server at the respondent's hotel from 11 April 2022.
- On 21 January 2023, an incident occurred where the claimant alleges the floor supervisor used racist names and he was summarily dismissed.
- The respondent claims the claimant was dismissed on 25 January 2023 after a meeting for gross misconduct.
- The claimant had less than two years' continuous service at the date of dismissal.
- The claimant failed to attend hearings, provide further particulars, or engage with the tribunal and respondent.
- The claim was struck out due to lack of jurisdiction for unfair dismissal and unreasonable conduct.
Timeline
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Employment started
Claimant began working as a server at the respondent's hotel.
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Incident at work
Claimant alleges floor supervisor used racist names and he was summarily dismissed.
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Dismissal meeting
Respondent says claimant attended a meeting and was dismissed for gross misconduct.
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Appeal dismissed
Respondent sent letter confirming dismissal of claimant's appeal.
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ACAS early conciliation started
Early conciliation via ACAS began.
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ACAS early conciliation ended
Early conciliation certificate issued.
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Claim lodged
Claimant lodged claims for unfair dismissal, race discrimination, notice pay, and other payments.
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Respondent's ET3 filed
Respondent defended the claim and requested further details.
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Preliminary hearing (case management)
EJ Gidney conducted a hearing in claimant's absence; ordered claimant to provide further particulars by 16 October 2023.
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Preliminary hearing (strike out)
EJ Norris struck out the entire claim due to lack of jurisdiction and unreasonable conduct.
The legal issue
Whether the tribunal could hear an unfair dismissal claim when the employee had less than two years' continuous service, and whether the remaining claims for race discrimination and breach of contract should be struck out due to the claimant's failure to engage with the process.
The outcome
The tribunal struck out the claimant's unfair dismissal claim because he did not have the required two years' continuous service to bring such a claim. The remaining claims for race discrimination, notice pay, and other payments were also struck out because the claimant failed to attend hearings, provide further particulars, or communicate with the tribunal or the respondent. The tribunal found his conduct unreasonable and that he had not actively pursued his claim.
No compensation was awarded as the claim was struck out in its entirety.
Lessons & takeaways
- Employees with less than two years' service generally cannot claim unfair dismissal, unless the dismissal is for an automatically unfair reason like discrimination or whistleblowing.
- Failing to attend hearings or comply with tribunal orders can result in your entire claim being struck out, even if it has merit.
- If you bring a discrimination claim, you must provide specific details when asked, including the protected characteristic and any comparators.
- Engaging with the tribunal and the other side is essential — ignoring emails and orders will likely lead to your case being dismissed.
A case that fell apart before it began
This case shows how quickly an employment tribunal claim can collapse when the claimant does not engage with the process. The restaurant server alleged he was racially abused by a supervisor and summarily dismissed in January 2023, after just nine months on the job. He brought claims for unfair dismissal, race discrimination, and unpaid wages.
But from the outset, the claimant failed to attend hearings, ignored orders to provide further details of his discrimination claim, and did not respond to the respondent's attempts to communicate. The tribunal noted that he acknowledged receipt of some emails but never engaged substantively.
Why the claim was doomed
The unfair dismissal claim had a fundamental problem: the claimant had less than two years' continuous service. Under UK law, employees generally need two years' service to bring an unfair dismissal claim, unless the dismissal is for an automatically unfair reason. The claimant did not argue that his dismissal was automatically unfair, so the tribunal had no jurisdiction to hear that part of the claim.
The race discrimination claim could have survived, but the claimant failed to provide the further particulars ordered by the tribunal — such as what racist names were used and what protected characteristic he relied on. Without that information, the respondent could not properly defend the claim, and the tribunal concluded that the claimant's conduct was unreasonable and that he had abandoned the claim.
What the losing side could have done differently
The respondent, London XXI Limited t/a ME London, did everything correctly — it attended hearings, complied with orders, and even prepared a bundle for the final hearing. The claimant, however, could have saved his discrimination claim simply by providing the requested details and attending the hearings. His failure to do so meant the tribunal had no choice but to strike out the entire claim.
Why this matters
This case is a cautionary tale for anyone considering an employment tribunal claim: the process requires active participation. Ignoring tribunal orders or failing to attend hearings will almost certainly result in your claim being struck out, regardless of its merits. It also highlights the importance of understanding the two-year service requirement for unfair dismissal claims — a rule that catches many claimants by surprise.
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