Assertion of a statutory right
Thursday 28th February 2019
The EAT held in Spaceman v ISS Mediclean Ltd t/a ISS Facility Services Healthcare that protection against unfair dismissal following the assertion of a statutory right requires an allegation that there has been an actual breach.
Mr Spaceman began working as a porter at West Middlesex Hospital in October 2015, but was dismissed in April 2017. During the disciplinary proceedings, Mr Spaceman alleged that the decision to dismiss him had already been made. Having less than 2 years’ service, he claimed his dismissal was automatically unfair as it resulted from him asserting a statutory right; the right not to be unfairly dismissed.
The ET emphasised the use of the past tense in the legislation, which required an allegation that the employer has already infringed a statutory right; not that it would do so in the future. The statutory right not to be unfairly dismissed cannot be asserted until after dismissal and therefore could not be relied on as the reason for dismissal. The claim was struck out as having no reasonable prospect of success.
The EAT agreed, holding that the allegation must be “you have infringed my right” not merely “you will infringe my right” in the future. The EAT acknowledged that the provision was drafted in narrower terms than related provisions in the legislation. However, applying the normal meaning of the wording meant employees could not sidestep the requirement for qualifying service simply by alleging in advance that their dismissal would be unfair.
The EAT did note that unfair dismissal is a UK right and left open the question of whether EU derived rights might require a broader approach when interpreting the same provision.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.