The EAT considered in Spaceman v ISS Mediclean Ltd (t/a ISS Facility Service Healthcare) whether an employee is protected from being unfairly dismissed for asserting a statutory right, when at the time the statutory right was asserted by the employee, there was only a threat of infringement.
Mr Spaceman was a hospital porter who had been suspended following allegations of sexual harassment and assault. The allegations were investigated by his employer, ISS, and a disciplinary hearing took place.
At the disciplinary hearing, he made a statement that he had been told by a co-worker, ahead of the meeting, that the co-worker had been informed that Mr Spaceman was going to be “sacked anyway”.
A further investigation was then conducted into issues raised at the disciplinary hearing and Mr Spaceman was summarily dismissed on 14 June.
Mr Spaceman did not have the qualifying period of 2 years’ service required for bringing an unfair dismissal claim. Therefore, Mr Spaceman brought a claim that he had been unfairly dismissed for asserting a statutory right by virtue of Section 104(1)(b) of the Employment Rights Act 1996, which has no qualifying period.
The claim stemmed from the statement Mr Spaceman made at his disciplinary hearing. He alleged that his dismissal was due to him making that allegation and as a result ISS had breached his statutory right not to be unfairly dismissed.
The tribunal held that section 104(1)(b) uses the past tense “that the employer had infringed a right of his which is a relevant statutory right” and therefore assertion of the right could only be made after dismissal and could not, therefore, be the reason for dismissal.
Mr Spaceman appealed citing that the Employment Judge took an unduly narrow approach to section 104(1)(b).
The EAT agreed with the tribunal’s approach to section 104(1)(b). Although Mr Spaceman had alleged that the procedure was unfair and that ISS had already decided to dismiss him in the future, he had not alleged that he had already been dismissed when he made the comment at the disciplinary hearing. Section 104(1)(b) requires an allegation that there had been an infringement of the employee’s right i.e. that Mr Spaceman had been unfairly dismissed, not that there might be an infringement in the future, for example if ISS was taking action which might lead to an unfair dismissal.
Whilst in this case the decision was in the employer’s favour, it should act as a reminder to employers about how office hearsay can affect a disciplinary process.
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