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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Spaceman v ISS Mediclean Ltd (t/a ISS Facility Service Healthcare) [2018] UKEAT 0142_18_1910 (19 October 2018) URL: http://www.bailii.org/uk/cases/UKEAT/2018/0142_18_1910.html Cite as: [2019] IRLR 512, [2018] UKEAT 0142_18_1910, [2019] ICR 687, [2018] UKEAT 142_18_1910 |
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At the Tribunal | |
Before
HIS HONOUR DAVID RICHARDSON
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | No appearance or representation by or on behalf of the Appellant |
For the Respondent | No appearance or representation by or on behalf of the Respondent |
SUMMARY
UNFAIR DISMISSAL – Automatically unfair reasons
On the true construction of section 104(1)(b) of the Employment Rights Act 1996, there must be an allegation by an employee that there has been an infringement of a statutory right, not merely that the employer may, or will, or threatens to, or intends to infringe such a right. Mennell v Newell & Wright (Transport Contractors) Limited [1997] IRLR 519 considered.
Appeal dismissed.
HIS HONOUR DAVID RICHARDSON
The Background Facts
The ET Proceedings
"I asked Innocent [a work colleague] to represent me as a member of staff and he told me that Kieran Hudson, the General Manager, asked him to back off from the case because whatever the case I am going to be sacked anyway and he should not get himself involved as that is what Vouygues UK Ltd want and a disciplinary officer has been told to dismiss me."
Statutory Provisions
"104 Assertion of statutory right
(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee—
(a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or
(b) alleged that the employer had infringed a right of his which is a relevant statutory right.
(2) It is immaterial for the purposes of subsection (1)—
(a) whether or not the employee has the right, or
(b) whether or not the right has been infringed;
but, for that subsection to apply, the claim to the right and that it has been infringed must be made in good faith.
(3) It is sufficient for subsection (1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.
(4) The following are relevant statutory rights for the purposes of this section—
(a) any right conferred by this Act for which the remedy for its infringement is by way of a complaint or reference to an [employment tribunal],
…."
"[103A Protected disclosure
An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.]"
The Employment Judge's Reasons
"9…. Section 104(1)(b) requires an allegation "that the employer had infringed a right of his which is a relevant statutory right." The use of the past tense is significant. The right in question is the right not to suffer an unfair dismissal. If the assertion of this right can only be made after the dismissal it cannot then be relied on as a reason for dismissal. This interpretation prevents what I regard as a circular argument. Otherwise it could be said on any occasion when an employee complains that a dismissal would be unfair that they were dismissed for asserting a statutory right, and thus avoid the need for any period of qualifying service. That argument is unsustainable and that claim is therefore struck out as having no reasonable prospect of success."
Submissions
"Although it may be objected that the assertion of a future infringement of the right not to be unfairly dismissed will tend to lead to a circular argument (particularly where the complainant can only assert a right not to be unfairly dismissed if s/he can establish that the dismissal is for an automatically unfair reasons such as the assertion of an infringement of a statutory right), that would not be the case in respect of the assertion of an infringement of other statutory rights; the construction the ET has adopted would also apply (for example) to the assertion of a future infringement of the right not to suffer an unauthorised deduction of wages. It seems to me that the appeal thus raises a reasonably arguable question of construction…"
Discussion and Conclusions
"28.…. On this point I agree with the Employment Appeal Tribunal that the industrial tribunal were wrong to construe s.60A as confined to cases where the right under the Wages Act had been infringed. It is sufficient if the employee has alleged that his employer has infringed his statutory right and that the making of that allegation was the reason or the principal reason for his dismissal. The allegation need not be specific, provided it has been made reasonably clear to the employer what right was claimed to have been infringed. The allegation need not be correct, either as to the entitlement to the right or as to its infringement, provided that the claim was made in good faith. The important point for present purposes is that the employee must have made an allegation of the kind protected by s.60A; if he had not, the making of such an allegation could not have been the reason for his dismissal."
"(3). Reverting to s.60A, subsection (1)(a) applies where the employee has brought proceedings against the employer to enforce a relevant statutory right. That would cover, inter alia, a complaint to an industrial tribunal under s.5 of the Wages Act.
(4). However, s.60A(1)(b) goes further. It is enough that the employee alleges in good faith that his employer has infringed a relevant statutory right. There is no requirement that the employer has actually infringed the statutory right (s.60(A)(2)).
(5). Thus, in this case, if the facts be that the employer sought by threat of dismissal to impose a variation of the contract of employment to incorporate a term which negated the employee's statutory right not to suffer a reduction of wages without his freely given consent, that is, or might be, an infringement of his statutory right at the time when the threat is made, bearing in mind the words of s.60A (2)."