The law says that it is automatically unfair to dismiss an employee if the reason is because they asserted that the employer had infringed a relevant statutory right. In Spaceman v ISS Mediclean Ltd t/a ISS Facility Service Healthcare the Employment Appeal Tribunal (EAT) held that the infringement must have already happened as opposed to one that may or may not happen in the future.
Mr Spaceman started work as a porter at West Middlesex University Hospital in October 2015, working night shifts from an office shared with female staff employed on a help desk by a client of ISS Mediclean. In April 2017 he was suspended from his job after three female colleagues alleged that he had sexually harassed and assaulted them.
After an investigation, a disciplinary hearing took place in May 2017 at which Mr Spaceman alleged that his employer was determined to dismiss him, no matter what. ISS Mediclean carried out further investigations after the hearing but then dismissed him by letter dated 14 June 2017.
As he did not have two years’ continuous service, Mr Spaceman could not bring a claim for unfair dismissal. Instead he brought a claim for automatically unfair dismissal under section 104(1)(b) Employment Rights Act 1996 (which does not require two years’ service) on the basis that he had been dismissed for alleging that ISS intended to dismiss him no matter what, in contravention of his statutory right not to be unfairly dismissed.
Section 104 (1)(b) of the Employment Rights Act 1996 states that it is unfair to dismiss an employee if the reason or principal reason for the dismissal is that the employee alleged that the employer “had infringed a right” which is a “relevant statutory right”.
The tribunal struck out the claim on the basis that section 104(1)(b) requires an allegation that “the employer had infringed a right” which is a “relevant statutory right”.
It held that the use of the past tense was significant in that the right in question was the right not to suffer an unfair dismissal. If the right could only be asserted after the dismissal, it could not then be relied on as a reason for dismissal. Otherwise it could be said 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.
That argument, said the tribunal, was unsustainable. It therefore struck out his claim as having no reasonable prospect of success.
The EAT held that the starting point for considering the appeal was the language of section 104 itself. Read naturally, it required an allegation by the employee that there had been an infringement of a statutory right but it must be an infringement in the past tense, not one that may or may not happen in the future.
The tribunal judge was therefore correct in his interpretation of section 104(1)(b). In the context of the right not to be unfairly dismissed, it requires an allegation by the employee that they have 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”.
Although Mr Spaceman 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. Indeed, he and his representative attended a disciplinary hearing seeking to avoid precisely that result.
The EAT therefore dismissed the appeal.
The outcome of this case could be significant and have a wide scope to limit the prospect of employees pursuing automatically unfair dismissal claims for having asserted a statutory right and denying justice to employees with less than two years’ service. Consider the following scenario: an employer proposes to unlawfully deduct sums from an employee’s wages. The employee complains about this and asserts that the employer has infringed this statutory right. Before the employer actually makes the deduction from the wages the employee is dismissed for having complained about the proposed deduction. Based on the outcome of this case, as the infringement had not happened, the dismissal will not be automatically unfair under section 104. If the employee has less than two years’ service, they cannot obtain justice for having lost their employment.