Appeal against the ET’s striking out of a claim by the Claimant that he had been unfairly dismissed by virtue of s 104 Employment Rights Act 1996 (“ERA”) for asserting a statutory right. Appeal dismissed.
Mr Spaceman was employed by the Respondent with effect from 13 October 2015 as a dispatch porter in West Middlesex University Hospital. He worked night shifts from an office shared with female staff employed on a help desk by a client of the Respondent. In April 2017 one of those female employees made an allegation against the Claimant of sexual harassment and assault.
Mr Spaceman was suspended and in early May, two others made similar allegations.
On 31st May 2016, a disciplinary hearing took place. Mr John Neckles, a Trade Union Official, represented Mr Spaceman. Over the next two weeks there was further investigation into issues raised at the hearing. Then by letter dated 14 June 2017 the Respondent summarily dismissed Mr Spaceman.
Generally speaking, there is a two-year qualifying period before an employee may present a claim of unfair dismissal: see section 108(1) of the ERA. However, there are exceptions if a dismissal is unfair by virtue of section 104 or section 103A among other provisions.
His case relating to these provisions stemmed from something he said at the disciplinary hearing on 31 May 2017. The words or the gist of them were as follows:
“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.”
Mr Spaceman’s case was that he was dismissed by virtue of making this allegation.
The tribunal struck out this claim on the basis that it had no reasonable prospect of success and provided the following reason:
“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.”
Mr Spaceman appealed and the EAT upheld the tribunal’s decision. Section 104(1)(b) requires an allegation by the employee that there has been an infringement of a statutory right. An allegation that there may be a breach in the future is not sufficient. The thrust of the allegation must be, “you have infringed my right,” not merely “you will infringe my right.”