Moneda Capital plc

Case Summary

The claimant's complaint of unfair dismissal was struck out under Rule 38 of the Employment Tribunal Procedure Rules 2024 because he lacked the required two years' continuous service. The tribunal rejected the claimant's argument that a constructive dismissal claim or whistleblowing protection under section 103A ERA would avoid this requirement, noting that the protected disclosure was made in April 2025 after the dismissal occurred in March 2025.

The claim was struck out because the claimant did not have two years' continuous service as required by section 108 of the Employment Rights Act 1996. The tribunal found that constructive dismissal does not avoid this requirement, and the whistleblowing protection under section 103A ERA does not apply because the protected disclosure (made in April 2025) occurred after the dismissal (March 2025) and therefore could not have been the reason for the dismissal.

• •Whether claimant had two years' continuous service required for unfair dismissal claim
• •Whether constructive dismissal claim can proceed without two years' service
• •Whether whistleblowing claim under section 103A ERA applies when protected disclosure made after dismissal

EMPLOYMENT TRIBUNALS Claimant: Mr L Harris Respondent: Moneda Capital PLC JUDGMENT The complaint of unfair dismissal is struck out. REASONS 1. The Tribunal wrote to the claimant on 16 December 2025 warning them that the Tribunal was considering striking out part of the claim: the complaint of unfair dismissal. This was because it appeared to the Tribunal, applying Rule 38 of the Employment Tribunal Procedure Rules 2024, that, in relation to that part, the claim had no reasonable prospect of success because the claimant did not have two years’ continuous service. 2. The letter gave the claimant an opportunity to explain why that part of the claim should not be struck out, or to request a hearing at which to do so. The claimant has replied in an email dated 18 December 2025 explaining (in summary) that the basis of his complaint is one of constructive dismissal and that he has raised a whistleblowing case in April 2025. He did not request a hearing. 3. Having considered the claimant’s response in full, I am satisfied that the grounds for striking out that part of the claim under Rule 38 apply, and that it would be in accordance with the overriding objective in Rule 3 to strike out that part of the claim. This is because: a. Simply because a claim is one for constructive dismissal does not avoid the requirement for two years’ service in section 108 of the Employment Rights Act 1996 (ERA). b. The two years’ service requirement is not relevant if the claim is one under section 103A ERA. However, such a claim requires that the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure. On the claimant’s own account, his constructive dismissal occurred in March 2025, and his protected disclosure was made when he raised his whistleblowing case in April 2025. The protected disclosure cannot therefore have been the reason or principal reason for dismi…