The Claimant made a claim of unfair dismissal. His claim form also referred to dismissal on the grounds of having made a protected disclosure. However, the protected disclosure complaint was overlooked given the structure of the ET1. The claim was struck out as he did not have the requisite 2 years' service to make a claim of ordinary unfair dismissal. A reconsideration did not alter the decision and he appealed to the EAT.

The EAT allowed the appeal. The strike out was made on the basis that the Claimant had insufficient continuity of employment to pursue an unfair dismissal claim. This was correct in respect of the claim insofar as it related to a claim of unfair dismissal pursuant to section 94 ERA, because of the restriction in section 108(1) ERA. However, that was not the case in respect of a claim pursuant to section 103A which is made an exception to section 108(1) in section 108(3) ERA.