An automatically unfair dismissal can occur if an employee is dismissed for asserting any of their listed statutory rights, or if the employer has infringed on any of these statutory rights. In these circumstances, their length of service will be irrelevant.
In Spaceman vs ISS Mediclean Ltd (ISS) - no, not the Space Station guys - the Employment Appeal Tribunal (EAT) contemplated whether or not Mr Spaceman’s statutory rights were being infringed when, during a disciplinary hearing, he claimed ISS had predetermined his disciplinary outcome and there was nothing he could do to save himself from being dismissed. Accordingly, he claimed the process was a sham and his right not to be unfairly dismissed had been infringed.
In this case Mr Spaceman had been suspended by ISS in the wake of sexual assault and harassment claims which had been brought by various colleges. Based upon the evidence, ISS found that he had committed acts of gross misconduct and summarily dismissed Mr Spaceman. Mr Spaceman attempted to claim rather than being dismissed for misconduct, he was actually dismissed for accusing ISS of infringing his statutory right not to be unfairly dismissed.
In the first instance the Employment Tribunal held that the case had no reasonable chance of success and therefore struck out the claim. The case was dismissed because Mr Spaceman claimed ISS Medicare was going to infringe his right, rather than allege they had infringed his right. It was found that a claim there may be a violation of a right in the future was not enough.
The EAT agreed with the findings of the tribunal in the first instance and made it clear that a statutory right had to have been infringed for a claim to be raised correctly.
This case goes to show that an employee’s statutory rights can only be protected if the right has been infringed and the employee operated in good faith. It is not enough to claim that the employer may unfairly dismiss the employee. He or she must claim that they have been unfairly dismissed.
Despite the finding that Mr Spaceman’s claims were moonbeams, it doesn’t take a NASA Scientist to know that careful consideration should be given when an employee claims that their statutory rights have been breached. If you are unsure about what these statutory rights may be and how an employer may accidentally breach them, you can contact your dedicated Employment Solicitor.