Employees who do not have the requisite length of service (2 years) to claim normal unfair dismissal can still claim automatically unfair dismissal under 2 years on a number of grounds. Some of the more common grounds on which this is claimed include where a dismissal is linked to discrimination, or whistleblowing or where the employee can assert the reason or principal reason (if there is more than one) for the dismissal is because he or she has asserted a statutory right (Section 104 of the Employment Rights Act 1996).
In Spaceman v ISS Mediclean Limited the Employment Appeal Tribunal (EAT) has given a decision which potentially assists employers and narrows protection of that right.
The Claimant was summarily dismissed from his job as hospital porter, following disciplinary proceedings for alleged sexual harassment and assault. He brought a claim against ISSM Ltd for automatically unfair dismissal contrary to Section 104(1)(b) ERA, which applies where the reason for dismissal is that the employee alleged that the employer had infringed a statutory right. The Claimant’s case was that he was dismissed by virtue of an allegation he made at his disciplinary hearing – namely, that ISSM Ltd had already made up its mind to dismiss him, i.e. infringing his statutory right not to be unfairly dismissed. An Employment Judge accepted that this was the reason for his dismissal. However, he struck out the Claimant’s claim on the basis that Section 104(1)(b) requires an allegation that the employer had infringed a statutory right (as opposed to an allegation that the employer threatened to infringe a statutory right). The Claimant appealed, arguing that the Judge had taken an unduly narrow approach.
The EAT dismissed the appeal. It found that protection under Section 104 requires an allegation by the employee that there has actually been an infringement of a statutory right. An allegation that there may be in the future is not sufficient. In summary the employee must be saying or alleging that “you have infringed my right” not merely “you will infringe my right”.
A word of caution however, the EAT also mentioned that where any statutory rights were derived from EU law rather than domestic law (at issue here) there was a question as to whether Section 104 could be written more extensively.
Employers should be alert to the automatically unfair reasons for dismissal. The RMIF legal helpline commonly encounters situations where employees with under 2 years’ service are making allegations against the company before they are dismissed and it is important to ascertain whether or not such allegations could fall within protection of automatic unfair dismissal or not. Should you find yourself in this situation you have access to the RMIF legal helpline for telephone advice.
Motor Industry Legal Services
Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.