Consider the scenario where a manager calls an employee into the office and tells an employee that they are surplus to requirements and that this is a redundancy situation. The manager accepts this is not an ideal situation but says the dismissal is a foregone certainty and there will be no consultation or any consideration of any alternatives – so they will be making the employee redundant without any fair process at the end of the month, but will give them their notice pay. The employee is angry, if there is a redundancy then the employer need to follow a fair process, and he tells the employer as much – he demands that his rights to be fairly dismissed is adhered to. The manager counters that if the employee is going to be like that he can expect a P45 the following week, and he can forget receiving notice pay too.

The employee may think that is a ‘gotcha’ moment. What the employer has now done is is dismiss the employee for asserting a statutory right – that is the right not to be fairly dismissed. Section 104 of the Employment Rights Act 1996 put the right in the following way:

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—

… (b) alleged that the employer had infringed a right of his which is a relevant statutory right.

Section 104(1) – Employment Rights Act 1996.

After the employee’s complaint that his rights to not being unfairly dismissed are being trampled over by his employer so much so that he is dismissed summarily and much sooner that would have been had he not made the complaint he is bound to be successful in his case of automatically unfair dismissal surely? The manager did, after all, acted contemptibly in direct response to the employee’s assertion that he was going to be dismissed unfairly, right?

In a judgment that could be justly added and achieve a pride of place to the burgeoning ‘the law is an ass’ collection a recent decision of the EAT would very likely mean that our wronged employee would walk out of the employment tribunal nothing more than a dismissal of claim and not just a dismissal, a struck out claim with the risk of costs being awarded against him that that decision will invariably raise.

The main reason for this finding is set out in paragraph 27 of the judgment in Spaceman v ISS Mediclean Ltd [2018]:

In my judgment the starting point must be the language of section 104 itself. Read naturally, 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.”

Since at the point of the complaint our employee had not been dismissed then there was no assertion that the employer had already unfairly dismissed the employee, merely that the employer was in the process of doing so. In fairness to the judge making that determination recognises this could give a pass to unscrupulous employers and intimated this is an area Parliament could look at again [at paragraph 34].

The reason this is so harmful, of course is because the employee has not real options to make his case. Sure, if he has been employed for two years he can plead a case in ordinary unfair dismissal, and I suspect would have a good prospect of succeeding since it would be much easier to show the principal reason was for asserting an unfair process was underway which if established would require a finding of unfair dismissal.

I see very little justification for the two years qualifying service requirement – it may be a radical notion these days but I think every employee has a right not to be unfairly dismissed; that means that any dismissal of an employee, however long they have been employed, should be for a potentially fair reason and, if not, an employee should be able to challenge that. It is precisely Parliament’s failure to apply this principle that causes the injustices to which employees like the one in our scenario to perpetuate.

Other approaches

It is difficult to see this as a injustice by design. It would be entirely possible for legislation to say that a dismissal for asserting a statutory right has been infringed, or is in the process of being infringed, is automatically unfair but personally I think there is a case for a simpler approach – rather than creating categories of ‘exceptions’ the law could be simplified to the effect that every employee – even if they cannot allege a procedurally unfair dismissal (that is a dismissal unfair under section 98(4) of the ERA 1996) should have the right to challenge whether their dismissal was for a potentially fair reason and if not they win without having to try to shoehorn their case to a particular exceptional reason.

Elsewhere the law has no problem envisaging a wronged person can rely on an anticipatory breach to launch proceedings (in contract law). This right includes constructive dismissal but, yes we have reached the same conclusion in that that right is useless for an employee who has less than two years’ employment since there is no basis for a constructive unfair dismissal claim. Similarly, the Equality Act allows a claim to be premised on an arrangement of the employer putting “or would apply” a claimant at a disadvantage (section 19(2)(a) of the Equality Act 2010).

Whatever the merits of the Spaceman decision itself the judgment highlights the real propensity for the Employment Rights Act 1996 to provide a free pass to rogue employers – that doesn’t need to be the case.


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