Administrative employee's race discrimination claim allowed to proceed despite short service
An employment tribunal has allowed a race discrimination claim to proceed against London Road Surgery, but struck out the unfair dismissal claim because the employee had less than two years' service.
1 min read · Last updated 18 May 2026
Case details
Key facts
- The claimant was employed by the respondent for less than two years.
- The claimant ticked the race discrimination box in her ET1 and described alleged mistreatment.
- The claimant is the only black person in the respondent's administrative team.
- The claimant alleged that a white colleague was treated more favourably.
- The claimant resigned, claiming constructive dismissal due to discrimination.
Timeline
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Claimant lodged ET1
The claimant filed her claim with the Employment Tribunal, alleging unfair dismissal, race discrimination, notice pay, and holiday pay.
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Tribunal wrote to claimant
The Tribunal informed the claimant that she needed two years' service for an unfair dismissal claim and invited her to show why it should not be struck out.
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Claimant responded
The claimant provided additional information, arguing her dismissal was automatically unfair.
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Respondent sought strike out
The respondent wrote to the Tribunal requesting that the unfair dismissal claim be struck out.
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Tribunal set preliminary hearing
The Tribunal scheduled a preliminary hearing to address the strike out application and case management.
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Hearing converted to open preliminary hearing
The Tribunal confirmed the hearing would consider strike out and deposit order applications.
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Preliminary hearing
The hearing took place by telephone. The claimant appeared in person; the respondent was represented by counsel. The Tribunal heard submissions.
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Judgment issued
The Tribunal dismissed the unfair dismissal claim for lack of jurisdiction but allowed the race discrimination, notice pay, and holiday pay claims to proceed.
The legal issue
The tribunal had to decide whether the claimant's unfair dismissal claim should be struck out for lack of jurisdiction because she had less than two years' service, and whether her race discrimination, notice pay, and holiday pay claims should be struck out or subject to a deposit order for having no reasonable prospect of success.
The outcome
The tribunal dismissed the unfair dismissal claim, as the claimant did not have the required two years' continuous service and no exception applied. However, the race discrimination, notice pay, and holiday pay claims were allowed to proceed. The tribunal found that these claims had more than little reasonable prospect of success, so they were not struck out and no deposit order was made. No compensation was awarded at this stage.
Lessons & takeaways
- Employees with less than two years' service generally cannot bring an unfair dismissal claim unless an exception applies, such as automatically unfair reasons like whistleblowing or discrimination.
- A claimant who ticks the race discrimination box and provides details of alleged mistreatment may have a viable claim even if other claims are struck out.
- Tribunals will not strike out discrimination claims that have more than a little reasonable prospect of success, especially where there are allegations of less favourable treatment compared to a colleague of a different race.
- Litigants in person should respond promptly to tribunal directions and provide clear reasons why their claim should not be struck out.
What this case shows in practice
This case illustrates the importance of understanding the two-year service requirement for unfair dismissal claims. The administrative employee had worked at London Road Surgery for less than two years when she resigned, claiming constructive dismissal due to race discrimination. The tribunal struck out her unfair dismissal claim because she did not meet the qualifying period and no exception applied. However, her race discrimination claim survived, as she alleged she was treated less favourably than a white colleague and was the only black person in her team.
What the losing side could have done differently
The respondent, London Road Surgery, sought to strike out all claims, arguing they had no reasonable prospect of success. But the tribunal found that the race discrimination claim had sufficient merit to proceed. The respondent could have focused on defending the claim on its merits rather than seeking early strike out, which can be costly and delay resolution.
Why the result matters for similar claims
This decision confirms that tribunals will protect discrimination claims from early dismissal even when linked claims fail. Employees with less than two years' service should not assume they have no recourse if they experience discrimination. The tribunal's refusal to impose a deposit order also means the claimant can pursue her case without having to pay a financial penalty upfront, which is particularly important for litigants in person.
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