The EAT has held that a claimant bringing a claim for automatic unfair dismissal for asserting a statutory right must be able to show that they made an allegation that there had been an infringement of a statutory right, not that their employer may, or would, or threatened to or intended to infringe such a right (Spaceman v ISS Mediclean, UKEAT/0142/18/JOJ)

Background

Under section 104(1)(b) of the Employment Rights Act 1996 (ERA 1996), there is no qualifying period of employment, and a dismissal is automatically unfair, where the reason or principal reason for dismissal is that the employee had asserted a statutory right, whether by bringing proceedings to enforce a relevant statutory right or alleging that their employer has infringed a right which is a relevant statutory right.

As long as the employee's claim is made in good faith, it does not matter whether or not they had the right or whether it was infringed, but the employee must make it reasonably clear what right they claim has been infringed.

Facts

The Claimant was employed by a facilities service company (ISS) as a porter in a hospital. He worked night shifts and shared an office with female staff working on a help desk, who were employed by one of ISS's clients. Approximately 18 months into his employment, one of the female employees made an allegation against him of sexual harassment and assault, as did two other female employees a few weeks later. The Claimant was suspended, ISS investigated and the Claimant subsequently attended a disciplinary hearing. At the disciplinary hearing, the Claimant commented that:

"I asked Innocent [a work colleague] to represent me as a member of staff and he told me that Kieran Hudson, the General Manager, asked him to back off from the case because whatever the case I am going to be sacked anyway and he should not get himself involved as that is what [the client] wants and a disciplinary officer has been told to dismiss me." (Allegation)

Ultimately, the Claimant was summarily dismissed for gross misconduct.

The Claimant did not have the requisite two years qualifying service to bring an unfair dismissal claim. However, he sought to argue that his dismissal was automatically unfair under s104(1)(b) of the ERA 1996 on the basis that he had been dismissed for asserting a statutory right. The Claimant asserted that he was dismissed for making the Allegation.

Employment Tribunal (ET)

The ET struck out the Claimant's case under s104 ERA 1996 on the basis that section 104(1)(b) ERA 1996 requires an allegation "…that the employer had infringed a right of his which is a relevant statutory right" and said that the use of the past tense was significant. The ET said that the right in question is the right not to suffer an unfair dismissal and that if the assertion of this right can only be made after the dismissal it cannot then be relied upon as a reason for dismissal.  

The Employment Judge noted that this interpretation was required to avoid a circular argument that on any occasion when an employee complains that a dismissal would be unfair that they were dismissed for asserting a statutory right, and thus avoid the need for any period of qualifying service.

The Claimant appealed to the Employment Appeal Tribunal (EAT).

EAT

The EAT summarised that the correct question for an ET is whether the employee made an allegation of a type covered by s104 and whether this was the principal reason for dismissal. The employee does not have to prove the truth of the allegation or even the existence of the right so long as the allegation is made in good faith.  

In this case, the EAT concluded that:  

• The starting point is the language of s104(1)(b) ERA 1996 itself, which requires an allegation by the employee that there has been an infringement of a statutory right. Under s104(1)(b), an allegation that there may be a breach in the future is not sufficient. The thrust of the allegation must be "you have infringed my right," not merely "you will infringe my right;"
• The EAT noted that the drafting in s104(1)(a) was in a similar vein to s104(1)(b), which requires the employer's reason for dismissal to be that the employee has brought proceedings against it to enforce a statutory right, not just that the employee proposed to do so;  
• Whilst some of the other provisions in the same section (ss104A-104E) applied to proposed proceedings as well as actual proceedings, the only natural reading of ss104(1)(a)-(b) were that future proceedings / infringements were excluded. In this regard, the EAT noted that the drafting techniques in the family are not always precisely the same;
• The Employment Judge was correct in his interpretation of s104(1)(b).  In the context of the right not to be unfairly dismissed, it requires an allegation by the employee that he has been unfairly dismissed, not merely that the employer is taking action, which will or threatens to or may result in an unfair dismissal in the future;
• In the context of the right not to be unfairly dismissed, the application of the normal meaning to s104(1)(b) ERA 1996 produces a sensible result.

Consequently, the EAT dismissed the Claimant's appeal.

Comment

This case reminds us that, although some of the other grounds for automatically unfair dismissal under s104 ERA relate to proposed actions, this ground is more narrowly drafted than most and only relates to an actual infringement that has taken place. As a result, a seemingly settled intention to dismiss Mr Spaceman was not sufficient to satisfy the requirements for an automatic unfair dismissal. Nevertheless, this case reinforces the importance of maintaining strict confidentiality and minimising casual gossip surrounding an ongoing disciplinary process. Had Mr Spaceman had two years' service to bring a claim, evidence of a pre-determined decision to dismiss would have been likely to result in a finding of unfair dismissal.

Spaceman v ISS Mediclean