A claim for unfair dismissal must include an allegation of an actual breach

This case examined both the limitations of a protected disclosure and whether an employee could assert his statutory right not to be unfairly dismissed. The employee in this case, Mr Spaceman, had less than 2 years’ service and worked for ISS Mediclean as a hospital porter based in West Middlesex University Hospital.

In April 2017, a female colleague alleged that Spaceman had subjected her to sexual harassment and assault during a night shift, for which he was placed on suspension. Whilst on suspension, two further female employees made broadly similar claims about him. A disciplinary hearing took place during which Spaceman alleged that a colleague had refused to accompany him as a manager had already made up their mind to dismiss him and informed his colleague of this.

After the hearing, the employer upheld the allegations of sexual harassment and assault and the claimant was subsequently dismissed. He argued that this dismissal amounted to an infringement on his statutory right not to be unfairly dismissed as outlined in Section 104 of the Employment Rights Act 1996. He also asserted that he had been unfairly dismissed for making a protected disclosure.

These claims were struck out at the initial employment tribunal (ET). In their decision, the ET held that the statutory right not to be unfairly dismissed cannot be asserted until after the dismissal has taken place. Therefore, any allegation needed to show that he had been unfairly dismissed without due process and not just that the organisation had threatened to do so. With regards to the protected disclosure claim, the ET found that, in this situation, the disclosure would fail the test to determine if it was in the public interest.

The claimant appealed this decision to the Employment Appeal Tribunal (EAT), who saw fit to agree with the reasoning of the ET. The EAT went further in explaining that the provision in Section 104 of the Employment Rights Act 1996 is aimed at preventing dismissals made in retaliation for trying to enforce or assert an employment right. This protects individuals who have made complaints about past, rather than prospective, conduct as was the case here. They also agreed that there was no public element to the protected disclosure claims as it was specific to sexual harassment allegations that had been personally levelled at the employee.

This case reaffirms that for automatic unfair dismissal to apply in these situations, there must be an allegation by an employee that there has been an infringement of a statutory right not to be dismissed unfairly. It will not be enough to argue that the employer has threatened to or intends to infringe such a right.

From an employer’s perspective, when making decisions to dismiss it is important to remember that just because an employee has under two years’ service it does not mean they have no rights. If the employee can show that their complaint was the principle reason for their dismissal and related to a relevant statutory right, then a Section 104 unfair dismissal claim can be brought to tribunal.

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