It is well established in UK law that employees need to have two years' continuous service with their employer to bring a claim of unfair dismissal. In Stubbs v Grafters Ltd, the Employment Appeal Tribunal (EAT) held that this rule could not be set aside for agency workers, even if they found it more difficult to accrue the relevant service.


Basic facts

Mr Stubbs worked for Grafters Ltd from 1 March to 2 October 2017. Although he was well outside the usual time limit of three months less one day, he lodged tribunal proceedings in February 2021 detailing why it had not been reasonably practicable for him to do so earlier.


Tribunal decision

Although his claim was accepted as a claim for unfair dismissal, the tribunal asked Mr Stubbs to give reasons why it should not be struck out given that he did not have the two years’ continuous service required to bring an (ordinary) unfair dismissal claim. When Mr Stubbs did not seem to respond, his claim was duly struck out.

He appealed to the EAT, arguing that the tribunal had failed to consider his whistleblowing claim. Although not a ground of appeal advanced on his Notice of Appeal, Mr Stubbs also argued during the appeal hearing itself that the two years' service requirement for a claim of unfair dismissal should be disallowed because, as an agency worker, it was impossible for him to satisfy it.


EAT decision

The company’s involvement in the appeal was limited to filing a skeleton argument which did not address the alleged whistleblowing allegation. It argued that Mr Stubbs was a worker and not an employee and therefore could not bring an unfair dismissal claim under the Employment Rights Act 1996 (ERA).

It also argued that Mr Stubbs had not been dismissed, instead, he was not offered additional assignments. Further, it argued that the tribunal did not have jurisdiction to hear the unfair dismissal claim because he did not have two years' service as an employee.

In terms of the whistleblowing claim, Mr Stubbs explained during the course of the EAT hearing that he was locked into a fridge by a manager, which was a breach of health and safety law.

The EAT postulated that the tribunal had likely overlooked that Mr Stubbs might have been bringing an automatically unfair dismissal claim (in other words that he had been dismissed for blowing the whistle) because of the way his claims were set out on his Employment Tribunal Claim Form (ET1). Indeed, the whistleblowing claim had not been specifically mentioned in the strike out order.

Without coming to a conclusion on the merits of the claim, the EAT agreed that the tribunal was wrong to strike out the whistleblowing claim. It decided this on the basis of the exceptions under the ERA (which include whistleblowing claims) to the usual requirement for two years’ service before bringing an unfair dismissal claim.

It, therefore, remitted the matter to the tribunal to hear the relevant evidence, including whether it was reasonably practicable for the claim to have been presented on time, (or if not whether it was filed within a reasonable period thereafter) and about Mr Stubbs’ employment status.

As for the ordinary unfair dismissal claim, the EAT looked at this for completeness although it did not form part of the appeal. As unfair dismissal is a statutory construct, the appeal tribunal noted that it was not for judges to make or rewrite the law as that is a matter for parliament and politicians.

As things stand, the EAT said the law was quite clear. In other words, the ERA requires an employee to have been in continuous employment for a minimum of two years to make a complaint of ordinary unfair dismissal. As Mr Stubbs did not have sufficient continuous employment, the judge was correct to strike out that aspect of the claim.