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Is it automatically unfair to dismiss someone because they allege that they will be dismissed unfairly?

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In Spaceman v. ISS Mediclean Ltd t/a ISS Facility Service Healthcare the Employment Appeal Tribunal (EAT) considered the circumstances in which an employee is dismissed for the automatically unfair reason of asserting infringement of a statutory right. In this case the employee was summarily dismissed. He did not have the necessary qualifying service to bring a claim for ordinary unfair dismissal, but claimed that he had been dismissed for an automatically unfair reason under s104 of the Employment Rights Act (ERA) which does not require him to have two years’ service.

The Claimant’s case was that he was dismissed by virtue of making an allegation at a disciplinary hearing to the effect that a manager had told a colleague that, whatever the case, the Claimant was going to be sacked anyway and that a disciplinary officer had been told to dismiss him. The ERA makes a dismissal automatically unfair if the reason for the dismissal is that the employee alleged that the employer had infringed a relevant statutory right. The right not to be unfairly dismissed is such a relevant right. The employee does not have to prove the truth of the allegation or even the existence of the right, so long as the allegation is made in good faith. The employment tribunal struck out Mr Spaceman’s claim on the basis that the allegation must relate to a dismissal that had already occurred – “had” is past tense. The EAT agreed. An allegation that there may be a breach in the future is not sufficient. 

There are a number of automatically unfair grounds of dismissal and this s104 ground is more narrowly drafted than most. There are many which do relate to proposed actions, as well as actual actions. In this case the words in s104 were given their natural meaning and the employee’s complaints of unfairness in the procedure adopted, and of a settled intention to dismiss him in the future, were not sufficient to support his case for automatic unfair dismissal.