Unfair Dismissal: Asserting a future breach of a statutory right cannot be the basis of a claim for automatically unfair dismissal

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Unfair Dismissal: Asserting a future breach of a statutory right cannot be the basis of a claim for automatically unfair dismissal

Published 14 March 2019

A claim of automatically unfair dismissal for asserting breach of a statutory right must be based on an assertion that there has already been a breach of the statutory right, not that there will be a future breach.

THE FACTS

Mr Spaceman, who had been employed for less than two years, was dismissed for gross misconduct, following allegations against him of sexual harassment and assault. He claimed that before the disciplinary hearing, his employer had already decided to dismiss him, and he alleged this in the disciplinary hearing. Mr Spaceman said that he had therefore been dismissed for asserting his statutory right not to be unfairly dismissed.

The employment tribunal struck out his claim on the basis that it had no reasonable prospect of success. Mr Spaceman appealed, and the EAT upheld the employment tribunal’s decision. The legislation 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”.

WHAT DOES THIS MEAN FOR EMPLOYERS?

This is a useful clarification that the protection given to employees asserting breaches of statutory rights is relatively narrow.

Spaceman v ISS Mediclean Ltd 

Authors

Zoë Wigan

Zoë Wigan

London - Fetter Lane

+44 (0)20 7894 6564

Ceri Fuller

Ceri Fuller

London - Fetter Lane

+44 (0)20 7894 6583

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