Most unfair dismissal claims require the claimant to have had two continuous years of service in order to be able to make a claim to the employment tribunal.  However, employees with less than two years' service may be able to make a claim of automatically unfair dismissal on various grounds.  One of those grounds is that they have been dismissed for asserting a statutory right.

We are seeing ever more creative attempts by employees without the necessary two year qualifying period of employment to bring these types of claims.

The Employment Appeal Tribunal ("EAT") has recently decided that 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. 

In Spaceman v ISS Mediclean Ltd the Claimant, Mr Spaceman,  was dismissed for allegations of sexual harassment and assault. He brought a claim in the employment tribunal for automatically unfair dismissal for asserting a statutory right. His case arose from something he said at the disciplinary hearing.  Mr Spaceman said he had asked a work colleague to represent him as a member of staff at the disciplinary hearing and that that colleague had told Mr Spaceman that the General Manager had asked the colleague to back off from the case because whatever the case, Mr Spaceman was going to be sacked anyway, the colleague should not get himself involved and that a disciplinary officer had been told to dismiss Mr Spaceman.

Mr Spaceman's case was that he was dismissed by virtue of making this allegation.

The EAT identified that the questions for the employment tribunal are whether the employee made an allegation of a type covered by the relevant legislation ( here section 104 of the Employment Rights Act 1996) and whether this was the principal reason for his dismissal. The employee does not have to prove the truth of the allegation or even the existence of the right so long as the allegation is made in good faith.

In the context of the right not to be unfairly dismissed, the EAT said it requires an allegation by the employee that he has been unfairly dismissed, not merely that the employer is taking action, which will or threatens to or may result in an unfair dismissal in the future. Although the Claimant was complaining of unfairness in the procedure adopted and of a settled intention to dismiss him in the future, he was not alleging that he had been dismissed already.  For that reason his claim had failed in the employment tribunal and the EAT upheld that approach.