Dismissed for gross misconduct: claim struck out as out of time and without merit
A former driver's unfair dismissal and discrimination claims were struck out after the tribunal found they had no reasonable prospects of success and were submitted late.
1 min read · Last updated 18 May 2026
Key facts
- Mr Holmes was dismissed for gross misconduct for failing to complete paperwork and obtain a vehicle load check.
- Mr Holmes had made a protected act in 2019 regarding racist language and bullying.
- The claim was submitted on 5 April 2022, after the 25 March 2022 deadline.
- The tribunal struck out all claims as having no reasonable prospects of success.
- The tribunal found no connection between the protected act and the dismissal.
Timeline
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Protected act
Mr Holmes complained about racist language and bullying by another employee (MR).
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Investigation of protected act
The respondent investigated and MR resigned; Mr Holmes received a final written warning.
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Grievance submitted
Mr Holmes submitted a grievance about the 2019 incidents.
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Dismissal
Mr Holmes was dismissed for gross misconduct after a disciplinary hearing.
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Early conciliation started
ACAS early conciliation began.
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ACAS certificate issued
ACAS certificate issued.
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Time limit expired
Deadline to submit claim.
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Claim submitted
Claim submitted out of time.
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Death of Mr Holmes
Mr Holmes died from a burst aneurysm.
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Preliminary hearing
Hearing to determine strike out and time issues.
The legal issue
The tribunal had to decide whether the claims for unfair dismissal, race discrimination, and victimisation should be struck out as having no reasonable prospects of success, and whether the claim was submitted in time.
The outcome
The tribunal struck out all claims.
- The claim was submitted 11 days late, and the tribunal found no reasonable excuse for the delay.
- The unfair dismissal claim had no reasonable prospects because the employer had a genuine belief in gross misconduct following a reasonable investigation, and dismissal was within the range of reasonable responses.
- The race discrimination and victimisation claims failed because there was no connection between the protected act in 2019 and the dismissal in 2021.
- No compensation was awarded as the claims were struck out.
Lessons & takeaways
- Always submit your tribunal claim within the three-month time limit, including the ACAS early conciliation period.
- A protected act from years ago is unlikely to support a victimisation claim unless there is a clear link to the dismissal.
- If you miss the deadline, you must provide a strong reason for the delay; otherwise, the claim will likely be struck out.
- A thorough investigation and fair process by the employer can defeat an unfair dismissal claim even if the employee disputes the facts.
A claim that ran out of road
This case shows how important it is to act quickly when bringing a tribunal claim. The former employee, a driver, was dismissed in November 2021 for failing to complete paperwork and obtain a vehicle load check. He believed his dismissal was linked to a complaint he had made in 2019 about racist language and bullying. But by the time he submitted his claim in April 2022, the deadline had already passed.
The tribunal found that the claim was 11 days late and that there was no good reason for the delay. Even if the claim had been in time, it would have been struck out anyway because it had no reasonable prospects of success.
What the employer did right
The employer, Travis Perkins Trading Co Ltd, carried out a thorough investigation and disciplinary process. The employee was given the chance to respond, his union representative attended, and CCTV evidence was reviewed. The employer had a genuine belief that gross misconduct had occurred, and dismissal was a reasonable response. The tribunal noted that the employee did not appeal his dismissal.
Why the discrimination claim failed
The employee argued that his dismissal was an act of victimisation because he had previously complained about racist language. However, the incident he complained about happened in 2019, and the employee involved had resigned. By the time of the dismissal in 2021, all the managers involved had left. The tribunal found no link between the protected act and the dismissal.
Key takeaway
This case is a reminder that even if you feel you have been treated unfairly, you must meet the strict time limits for bringing a claim. It also shows that employers who follow a fair process can successfully defend themselves, especially when the alleged misconduct is clear and the employee's allegations are historic and unconnected.
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