Automatic unfair dismissal and the assertion of infringement of a statutory right

Automatic unfair dismissal and the assertion of infringement of a statutory right

Automatic unfair dismissal and the assertion of infringement of a statutory right

The recent Employment Appeal Tribunal (“EAT”) decision in Spaceman v ISS Mediclean Ltd (t/a ISS Facility Service Healthcare) confirmed that the statutory concept of automatic unfair dismissal does not extend to circumstances where the reason for dismissal is the employee’s allegation of a potential future infringement of a statutory right by an employer.

Facts

Mr Spaceman was suspended from his role at ISS Mediclean Ltd (“ISS”) after his co-workers made accusations of sexual assault and harassment against him. During his internal disciplinary hearing, Mr Spaceman alleged unfairness as he said that he had heard that a manager had commented “he would be fired whatever the case”. Mr Spaceman was then summarily dismissed.

Decision

Mr Spaceman did not have the continuity of service required for a normal unfair dismissal claim but constructed a claim that his dismissal was “automatically unfair” as his allegation during the disciplinary hearing was an assertion of his statutory right not to be unfairly dismissed. There is no minimum continuity of service required for the claim of unfair dismissal on grounds of “assertion of infringement of a statutory right”. The Employment Tribunal struck out Mr Spaceman’s claims on the ground that the allegation must relate to an infringement of a statutory right which had already occurred i.e. here an unfair dismissal.  Mr Spaceman had not been unfairly dismissed at the point when he made the allegation and was instead merely alleging that his employer was taking action that might result in an unfair dismissal. The EAT upheld the Employment Tribunal’s decision confirming that a dismissal on the basis of an allegation that there might be a future breach is insufficient for the purposes of finding a claim of automatically unfair dismissal.

Comment

The EAT acknowledged that the relevant ground for automatically unfair dismissal here is particularly narrowly drafted compared to other similar grounds. Nevertheless, the EAT could not construe the provision beyond its natural meaning, which is that an employee’s allegation (where the making of such allegation results in their dismissal) must relate to a statutory right that has already been infringed.

Although Mr Spaceman complained about alleged procedural unfairness based on his understanding that ISS had predetermined to sack him, he could not allege that he had already been unfairly dismissed and, as such, his claim of automatic unfair dismissal failed.

This decision will be welcome news for employers in confirming that this ground of claim is difficult to succeed in. 

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