The EAT provides clarification on claiming dismissal on the grounds of infringement of a statutory right
22 February 2019 #Other
The EAT in Spaceman v ISS Mediclean Ltd has confirmed that there must be an actual infringement of an employee’s statutory right by the employer, as opposed to a mere threat or intention to infringe.
In the case, the Claimant was dismissed following an investigation and disciplinary hearing relating to sexual harassment.
Prior to his disciplinary hearing, the Claimant had been told by a co-worker that he would be “sacked anyway”. He raised this at his disciplinary hearing and then alleged that he was subsequently dismissed for making this statement.
He brought a claim for automatic unfair dismissal on the basis that he was dismissed for alleging that his employer had infringed his statutory right – i.e. the right not to be unfairly dismissed relating to the alleged premeditated decision.
However, to bring this claim, the tribunal determined that the employer must have infringed a relevant statutory right. An allegation of an intention to infringe would not suffice. The EAT agreed that as the Claimant was complaining of a settled intention to dismiss him in the future, he was not alleging that he had been dismissed already and therefore no infringement had occurred.
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