Spaceman v ISS Mediclean Ltd (trading as ISS Facility Service Healthcare)

Section 104(1)(b) of the Employment Rights Act 1996 protects an employee dismissed for alleging that the employer has infringed a relevant statutory right. It does not extend to an allegation that the employer may, will, threaten to, propose to, or intend to infringe that right in the future.

In the context of unfair dismissal, the employee must allege that an unfair dismissal has already occurred. A complaint about a procedure leading to a proposed or threatened dismissal is insufficient. Any wider protection is a matter for Parliament.

The claimant appealed against an Employment Tribunal decision dated 14 February 2018. The tribunal struck out his claim that he had been automatically unfairly dismissed under section 104 of the Employment Rights Act 1996 for asserting a statutory right. It also ordered a deposit in relation to his section 103A claim concerning a protected disclosure.

The claimant had raised, during disciplinary proceedings, an allegation that the employer had predetermined his dismissal. The central issues were whether that allegation satisfied section 104(1)(b), and whether the tribunal had erred in assessing the prospects of the section 103A claim.

1. Section 104 claim. The appeal against the strike-out was dismissed. Section 104(1)(b) requires an allegation that the employer has infringed a relevant statutory right. An allegation of a threatened, proposed, intended or possible future infringement is insufficient.
2. The employee need not prove the truth of the allegation, or even the existence or infringement of the right, provided the claim was made in good faith and it was reasonably clear what right was said to have been infringed.
3. Mennell v Newell and Wright (Transport Contractors Ltd) [1997] IRLR 519 supported the distinction. Its approval of the proposition that an actual infringement need not be proved did not establish that a threatened future infringement was sufficient. The relevant passage concerning a threat was not necessary to the decision in Mennell, because the employee there had made no allegation of any kind.
4. The broader wording of other provisions in the same statutory family could not enlarge section 104. Any wider protection was a matter for Parliament.
5. Section 103A claim. The tribunal applied the correct legal test when making the deposit order. Its broad assessment that the claim had little reasonable prospect of success disclosed no error of law. Detailed analysis was unnecessary at that stage.

The appeal was dismissed.

1. Employment Tribunal, London (South): Employment Judge Fowell, 14 February 2018. The section 104 claim was struck out, and a deposit was ordered for the section 103A claim.
2. Employment Appeal Tribunal: appeal dismissed.