Unfair dismissal

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If an employee is dismissed for raising allegations that his employer infringed one of his statutory rights, the dismissal will be automatically unfair (section 104(1)(b) Employment Rights Act 1996). There is no two-year qualifying period to bring this claim. The Employment Appeal Tribunal has looked recently at whether this sort of claim can include an allegation that an employer may breach a statutory right in the future.

Mr Spaceman worked for ISS as a porter for less than two years. A colleague made allegations of sexual harassment. The employee asked a colleague to represent him at his disciplinary hearing. The colleague allegedly told the employee he was going to be sacked anyway. The employee raised this conversation at his disciplinary hearing and said his dismissal was predetermined. The employee was dismissed for gross misconduct. The employee did not have enough continuous service to bring an ordinary unfair dismissal claim. He brought a claim for automatic unfair dismissal under section 104(1) instead. He said that his allegation during the disciplinary process that his dismissal was predetermined was the assertion of a statutory right – the right not to be unfairly dismissed. He said that he was dismissed because he had made this allegation (rather than because his dismissal had been predetermined).

The employment tribunal struck out his claim because he had no chance of winning. The Employment Appeal Tribunal agreed. The EAT said that section 104(1) requires an allegation that a statutory right has been infringed. It is not enough to say there might be a breach in the future. The case must be ‘you have infringed my right’ not ‘you will infringe my right’. The right in this case was the right not to be unfairly dismissed. The assertion of this right could only be relied on after dismissal had taken place.

The EAT noted how improbable the employee’s allegations were – if the employer had already made up its mind to dismiss the employee, how could a reaction to the allegation be the reason for the dismissal? This case is a reminder to employers about how creative employees with less than two years’ service can be in dismissal situations. Care should be taken to ensure a fair procedure is followed in all cases, regardless of length of service.

Astons Solicitors
March 2019