In this case the employee, who has less than two years’ service, was dismissed following a disciplinary procedure that had considered, and upheld, allegations against him of sexual harassment and assault. At the disciplinary meeting, the employee claimed that he had tried to exercise his right to be accompanied but that his colleague had refused to do so when asked. According to the employee, this was because his colleague had been informed by the organisation that it had already made up its mind to dismiss the employee and the fact that he was accompanied would not change this outcome.
As he was dismissed following this claim, the employee argued the dismissal amounted to an infringement on his statutory right not to be unfairly dismissed as outlined in section 104 of the Employment Rights Act. He also asserted that he had been unfairly dismissed for making a protected disclosure.
The employment tribunal (ET) struck out his claims, outlining they had no reasonable prospect of success.
In forming their decision, the tribunal held that the statutory right not to be unfairly dismissed cannot be asserted until after the dismissal has taken place. Any complaint of automatic unfair dismissal needs to show that the statutory right has been infringed and not just that the organisation has threatened to infringe it.
When considering the protected disclosure argument, the tribunal found that, in this situation, the disclosure would likely fail to meet the requirement of being ‘in the public interest’.
The employee appealed this decision to the EAT, who dismissed his appeal and agreed with the reasoning of the ET.
The EAT outlined that the provision in section 104 is aimed at preventing dismissals that have been done in retaliation for bringing proceedings to enforce or assert employment rights. It therefore protects complaints about past, rather than prospective, conduct.
They also agreed that there was no public interest element to the protected disclosure claims as it was specific to accusations that had been levelled against the employee personally for sexual harassment.
For automatic unfair dismissal to apply in these situations, there must be an allegation by an employee that there has been an infringement of a statutory right. It will not be enough to argue that the employer has threatened to, may do, will do or intends to infringe such a right.
When making decisions to dismiss, organisations should remember that just because an employee has under two years of service it does not mean they have no rights. If the employee can show that their complaint was the principal reason for their dismissal and related to a relevant statutory right, then a section 104 automatic unfair dismissal claim can be brought.