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Automatic Unfair Dismissal

The Employment Appeal Tribunal in the case of Spaceman v ISS Mediclean Ltd has considered a case of automatic unfair dismissal on the basis of asserting a statutory right.

Background

Disciplinary proceedings were commenced against the Claimant following allegations of sexual harassment. During the disciplinary hearing he alleged procedural unfairness and said that he had been told by a colleague that “he was going to be sacked anyway”. The Claimant was subsequently dismissed for gross misconduct.

The Claimant had less than two years’ service so could not bring an ordinary unfair dismissal claim. However, he submitted a claim for automatic unfair dismissal (which does not require qualifying service) alleging he had been unfairly dismissed for asserting a statutory right.

The Law

Under employment legislation there are a number of inadmissible reasons for dismissal. Dismissal for an inadmissible reason will always be unfair and does not require qualifying service.

Inadmissible reasons for dismissal include (but are not limited to);

  • For reasons connected to pregnancy or childbirth;
  • For making a protected disclosure;
  • In connection with a request for flexible working;
  • For asserting a statutory right (which is relevant in this case)

Dismissal for asserting a statutory right

Section 104 of the ERA 1996 provides that dismissal will be automatically unfair where the reason for it was that the employee:

  • brought proceedings against the employer to enforce a right of his which is a statutory right; or
  • alleged the employer had infringed a right of his which is a relevant statutory right.

The Claimant argued that his allegation in the disciplinary hearing that “he was going to be sacked anyway” constituted an assertion of a statutory right (i.e. the right not to be unfairly dismissed) under section 104(b) of the Employment Rights Act 1996 (“ERA 1996”).

Decision

The Employment Tribunal and Employment Appeal Tribunal dismissed the Claimant’s claim. The wording of Section 104(b) ERA 1996 requires that at the time of dismissal there is an allegation by an employee that an infringement of a statutory right has already occurred, not merely that an infringement may happen in the future.

This may be a key distinction for employers to note should they face an allegation of this kind.

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