Lorry driver with 18 days' service: unfair dismissal struck out but discrimination claims survive
A lorry driver who resigned after 18 days and later worked as an agency driver was unable to claim unfair dismissal due to short service, but his disability and race discrimination claims will proceed to a final hearing.
2 min read · Last updated 18 May 2026
Case details
Key facts
- The claimant was employed by the respondent from 3 May 2021 to 21 May 2021 as a lorry driver.
- He resigned after being told he could not change his shift times, claiming constructive dismissal.
- He later worked as an agency driver for the respondent and was suspended on 2 August 2021 for tachograph infringements.
- The claimant suffers from depression and anxiety, which the tribunal found amounted to a disability.
- The unfair dismissal claim was struck out due to insufficient service (less than two years).
- The disability and race discrimination claims were not struck out and will proceed to a final hearing.
Timeline
-
GP consultation for mental health
Claimant had telephone consultation with GP regarding childhood trauma and worry about becoming mentally unwell.
-
Assessment with Medway Talking Therapies
Claimant scored 20/27 on PHQ-9 (severe depression) and 15/21 on GAD-7 (severe anxiety). Referred for counselling.
-
Started employment with John Lewis
Claimant began work as a lorry driver on night shifts.
-
Resigned from employment
Claimant resigned after being told he could not start work earlier. He parted on good terms.
-
Final counselling session
Claimant completed seven sessions of counselling. Post-treatment PHQ-9 score was 13 (moderate depression), GAD-7 remained 15 (severe anxiety).
-
Suspended from agency work
Claimant was suspended from driving for John Lewis due to tachograph infringements.
-
ACAS early conciliation notified
Claimant notified ACAS, starting the early conciliation process.
-
ACAS certificate issued
Claimant received early conciliation certificate.
-
Claim presented to tribunal
Claimant filed his claim form with the employment tribunal.
-
Open Preliminary Hearing
Hearing before Employment Judge Heath to consider time limits, strike out, and deposit orders.
The legal issue
The tribunal had to decide whether the claimant's unfair dismissal claim was barred by his short service, and whether his disability and race discrimination claims should be struck out as out of time or lacking merit.
The outcome
The tribunal struck out the claimant's unfair dismissal claim because he had only 18 days' service, falling short of the two-year qualifying period. However, it refused to strike out his disability and race discrimination claims, finding they were brought within the time limits and had reasonable prospects of success. No deposit order was made. The claims will proceed to a final hearing.
- Unfair dismissal claim: struck out (insufficient service)
- Disability discrimination claims: not struck out, no deposit order
- Race discrimination claims: not struck out, no deposit order
- No damages awarded at this stage
Lessons & takeaways
- Employees with less than two years' service cannot claim ordinary unfair dismissal, but may still bring discrimination claims regardless of length of service.
- If you have a disability, document how workplace policies (like fixed shift times) put you at a disadvantage, as this can support a reasonable adjustments claim.
- Time limits for discrimination claims are strict: you usually have three months from the act complained of, but the tribunal can extend time if it is just and equitable.
- Working as an agency worker after resignation does not reset the clock for unfair dismissal, but discrimination claims can cover events during agency work.
A short employment, a long legal fight
This case shows how employment rights can vary dramatically depending on the type of claim. The claimant worked for John Lewis Plc as a lorry driver for just 18 days in May 2021, resigning after being told he could not change his shift times. He later returned as an agency driver and was suspended in August 2021 over tachograph infringements. He brought claims for unfair dismissal, disability discrimination, and race discrimination.
Why the unfair dismissal claim failed
Under UK law, employees generally need two years' continuous service to bring an ordinary unfair dismissal claim. With only 18 days' service, the claimant had no chance of succeeding on that front, and the tribunal struck it out. This is a hard but clear rule: short-service employees cannot rely on unfair dismissal protections unless they can show an automatically unfair reason (like health and safety whistleblowing), which the tribunal refused to allow him to add.
Discrimination claims survive
The more significant part of the decision was that the disability and race discrimination claims were allowed to proceed. The tribunal found that the claimant's depression and anxiety amounted to a disability, and that his claims about shift times (during employment) and suspension (as an agency worker) were brought in time or could be considered as part of ongoing conduct. The respondent had argued the claims were too late or had no merit, but the tribunal disagreed, refusing to strike them out or impose a deposit order.
What this means for similar cases
For anyone considering a claim after a short period of employment, this case is a reminder that discrimination rights are not dependent on length of service. If you can show you were treated unfairly because of a protected characteristic like disability or race, you may have a claim even if you worked for only a few weeks. The key is to act quickly: discrimination claims must usually be brought within three months of the last act of discrimination, though the tribunal can extend time if it is just and equitable. Keeping a clear timeline of events and medical evidence is crucial.
Similar cases
Strike-out and deposit order: a mixed outcome for former employee with osteoarthritis
A former employee with osteoarthritis faced strike-out of one harassment claim but was allowed to proceed with others, including unfair dismissal and disability discrimination, after a preliminary hearing.
Former employee unfairly dismissed but gets only basic award after 70% contributory conduct deduction
A Watford tribunal found Mitie Ltd unfairly dismissed a former employee but reduced his basic award by 70% for his own conduct and made no compensatory award due to a 100% Polkey reduction. He received £1,298.10.
Constructive dismissal claims survive strike-out attempt: lessons for employers on trust and confidence
An experienced HR professional's claims of constructive unfair dismissal and disability discrimination will proceed to a full hearing after the tribunal refused to strike them out, though deposit orders were made.
20-year lunchtime supervisor loses constructive dismissal claim filed too late
A lunchtime supervisor with 20 years' service resigned claiming constructive dismissal but filed her claim 117 days late. The tribunal dismissed the claim for lack of jurisdiction and struck out discrimination claims as having no reasonable prospect of success.