According to the Employment Appeal Tribunal in England, a claimant may be able to claim automatic unfair dismissal on the basis that she has been dismissed for asserting a statutory right where an employer issues an instruction, compliance with which (the claimant asserts) would breach her statutory rights. It is not necessary to wait for the right in question to be breached in order for such a claim to ‘crystallise’.
The statutory right in question in this particular case was the claimant’s right under the Working Time Regulations 1998 to a weekly rest period. The employer had asked the claimant to work a period of 14 consecutive days, ie without any weekly rest period during those 14 days. The claimant objected to this arrangement on the day before the 14-day period commenced, and asserted to her employer that this instruction was in breach of her rights. The employer nonetheless insisted on the arrangement, and, on the following day, the claimant commenced the 14-day period of work as instructed. Shortly after that period finished, the employer dismissed her for raising the complaint on the day before the period commenced.
This case clarifies the application of Section 104 (Assertion of statutory right) of the ERA 1996.The employer asserted that the claimant could not rely on section 104 because:
- when she complained about the instruction to work the 14-day period on the day before it commenced, no breach of a statutory right had yet occurred, as the weekly rest period had not yet been missed, and hence
- the claimant was relying on a future breach of statutory right as the reason for her dismissal (as opposed to a breach which had already occurred) which, according to existing case law, is not covered by the section
The EAT disagreed. It found that the employer’s instruction to work the 14-day period (and the subsequent dismissal because she complained about that instruction) was enough to found a claim under section 104; there was no need to wait for the actual missing of the weekly rest period to occur before the claim under the section would ‘crystallise’. It was the instruction which was alleged to have infringed the claimant’s rights, and that was sufficient. It followed that the claimant was not relying on a future breach of statutory right, so that exception to the right did not apply.
Appeal judgments on the operation of this area of law are rare. This judgment therefore provides a small but important clarification on what it is necessary for a claimant to show in order to mount a claim for automatic unfair dismissal under this section. It shows that the ambit of the protection is wider than might have been assumed.https://www.bing.com/images/search?view=detailV2&ccid=A2OtbmhO&id=42E8F57EB2CE279F0FD06E3363BFE44C33A2C513&thid=OIP.A2OtbmhOb0E7nXafekVk2wHaEw&mediaurl=https%3a%2f%2fi.nextmedia.com.au%2fNews%2fcrn-14_gavel_unfair_dismissal_iStock-941328760.jpg&cdnurl=https%3a%2f%2fth.bing.com%2fth%2fid%2fR.0363ad6e684e6f413b9d769f7a4564db%3frik%3dE8WiM0zkv2Mzbg%26pid%3dImgRaw%26r%3d0&exph=900&expw=1400&q=unfair+dismissal&simid=607990257707537496&FORM=IRPRST&ck=BA3EE4065B3CB6E321C8736CCE23480B&selectedIndex=5&ajaxhist=0&ajaxserp=0
