When claiming dismissal on grounds of assertion of an infringement of a statutory right, must there have been an actual infringement by the employer (rather than a mere intention or threat of infringement)?
Yes, held the EAT in Spaceman v ISS Mediclean Ltd.
A ruling from His Honour David Richardson was published on 20th February after last October’s tribunal.
The Claimant was a porter. There was an allegation of sexual harassment against him. After an investigation and disciplinary hearing he was dismissed. He had less than two years' service. He brought a claim under s104(1)(b) of the Employment Rights Act 1996 (for which no qualifying period is required) on the basis that he was dismissed for alleging his employer had infringed a statutory right.
At his disciplinary hearing he said he had been told by a co-worker (who was to be his representative) that he was going to be "sacked anyway". The Claimant's case was that he was dismissed because of making this statement.
The employment tribunal struck out the claim as hopeless. Section 104(1)(b) requires an allegation "that the employer had infringed a right of his which is a relevant statutory right". The use of the past tense, said the tribunal, is significant.
The right in question in this case was the right not to be unfairly dismissed. But the assertion of this right could only be made after the dismissal. If so, it could not be relied on as the reason for dismissal.
The EAT agreed. Although the Claimant was complaining of unfairness in the procedure adopted, and of a settled intention to dismiss him in the future, he was not alleging that he had been dismissed already.
Kate Fretten, Employment Partner, comments “The Claimant does appear to have been trying it on in this case and the tribunal was correct to dismiss his claim. However, it does highlight the risk that an employee may try and come up with novel ways to get round the two-year service rule for unfair dismissal. An employer should be completely confident that the employee cannot realistically use one of the exceptions to the rule before dismissing without a procedure before the two year point.”
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