161: Claim of dismissal for alleging breach of a statutory right requires allegation of actual, not threatened, breach

Under the Employment Rights Act 1996, it is automatically unfair to dismiss an employee in retaliation for bringing Tribunal proceedings to enforce a statutory right, or for alleging that their employer had infringed a statutory right (section 104(1)).

It is immaterial whether the employee actually has the statutory right or whether a right has actually been infringed, but they must act in good faith. In Spaceman v ISS Mediclean Ltd (t/a ISS Facility Service Healthcare), the Employment Appeal Tribunal (the EAT) considered whether an employee was protected under these provisions where he had alleged during disciplinary proceedings that his employer had predetermined that he was going to be dismissed.

Mr Spaceman was suspended by ISS Mediclean Ltd following allegations that he had sexually harassed and assaulted three colleagues. During his disciplinary hearing, he alleged that ISS had already decided it was going to dismiss him. The company subsequently dismissed him for gross misconduct. However, Mr Spaceman claimed in the Employment Tribunal that the real reason for his dismissal was his allegation that ISS had infringed his statutory right not to be unfairly dismissed.

The Employment Tribunal struck out this claim as having no reasonable prospect of success. It noted that the legislation requires an allegation that the employer had infringed the employee’s statutory right. The use of the past tense is significant. Mr Spaceman claimed that he had been dismissed for alleging that ISS had already made up its mind to dismiss him. If this was true, then his allegation could not in itself be the main reason for his dismissal. It was unsustainable to argue that an employee could complain that a dismissal was going to be unfair and then claim that they were dismissed for asserting infringement of a statutory right, thereby avoiding the need for any period of qualifying service.

The EAT upheld the Tribunal’s decision, agreeing that an employee must have alleged that a statutory right had actually been infringed. An allegation that there may be a breach in the future is not sufficient. Mr Spaceman had complained that the disciplinary procedure was unfair and that the company intended to dismiss him, but he did not allege that he had been unfairly dismissed.

This case confirms that an employee will only be protected if they have alleged, in good faith, that an infringement has already occurred, although it does not matter whether or not this is correct. In the context of the right not to be unfairly dismissed, this requires an allegation by the employee that they have been unfairly dismissed, not merely that the employer is taking action which will or may result in an unfair dismissal in the future.