Ian Machray considers a recent judgment where an employee with less than 2 years’ service attempted to bring an unfair dismissal claim.
Section 104 of the Employment Rights Act 1996 provides that where the reason or principal reason for a dismissal is that the employee had asserted a statutory right, then the dismissal is automatically unfair which means that an employee can bring a claim even if they have less than 2 years’ service.
When bringing a claim under s104 it is immaterial whether the statutory right itself was actually infringed by the employer, so long as the allegation was made in good faith. The statutory rights protected by this legislation include the right not to suffer an unfair dismissal, the right to minimum notice, and rights relating to working time.
A recent case in the Employment Appeal Tribunal (EAT) considered s104. The case concerned a hospital porter who was accused of sexual harassment and assault. He was suspended and invited to a disciplinary hearing.
During the disciplinary hearing, he asserted that the case had already been decided against him and recounted that his colleague had been advised not to accompany him to the hearing as he was going to be “sacked anyway”. Following the hearing, the porter was dismissed for gross misconduct without notice.
He could not bring a claim for ordinary unfair dismissal because he did not have 2 years’ service. Instead, he bought a claim on the basis that he believed he was dismissed because he stated during the disciplinary hearing that his employer would or intended to unfairly dismiss him. He argued this was an assertion of a statutory right under s104 (in this case, the statutory right was the right not to suffer an unfair dismissal) and consequently his dismissal was automatically unfair.
The Tribunal found against the porter who went on to appeal at the EAT. The EAT dismissed the case on the basis that a claim under s104 can only be brought where the employee had been dismissed because they alleged there had been an infringement of a statutory right. The EAT emphasised the use of past tense. The legislation does not give protection where an employee is dismissed because they alleged the employer may, or will, or threatened or intended to unfairly dismiss him.
Although the employee in this case was unsuccessful, employers should be aware that employees with less than 2 years’ service can still bring a claim under s104 if they can show that they asserted a statutory right which is protected by s104, and the complaint was the principal reason for the dismissal.