Asserting a future breach of a statutory right and automatically unfair dismissal


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The Employment Appeal Tribunal (EAT) has considered the scope of protection from dismissal for asserting a statutory right in Spaceman v ISS Mediclean Ltd (t/a ISS Facility Service Healthcare). 

During internal disciplinary proceedings brought against him, Mr Spaceman alleged that the process was unfair in that ISS had predetermined to dismiss him. He was subsequently dismissed for gross misconduct. He brought a tribunal claim in which he argued that his allegation constituted the assertion of a statutory right (the right not to be unfairly dismissed), and that the making of the allegation was the reason for his dismissal.

At first instance the tribunal struck out his claim as having no reasonable prospect of success. The EAT agreed. Section 104(1) provides that an employee will be automatically unfairly dismissed if the reason, or principal reason, for the dismissal is that the employee has brought proceedings against the employer to enforce a relevant statutory right, or has alleged that the employer has infringed a relevant statutory right. Mr Spaceman had made an allegation that there might be a breach in future and this was not sufficient to gain the protection of section 104(1).

Take note: This case makes it clear that an employee will only be able to bring a claim for an employer actually infringing a statutory right; an allegation that there may be a breach in the future will not suffice. However, it's worth noting that, provided that the allegation that a statutory right has been infringed is brought in good faith, it does not matter whether the employee is correct.

This article is taken from HR Law - March 2019.

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