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To acquire the right to make a claim for unfair dismissal an employee must have been continuously employed for a minimum of two years.  The exceptions to this rule include any claims brought under the Equality Act 2010 for discrimination under one of the protected characteristics; sex, sexual orientation, race, disability, age, religion or belief, gender reassignment and marriage or civil partnership. Dismissal for asserting a statutory right also falls under this exception and is something employers need to be aware of as it tends to be overlooked when compared with claims for discrimination.

A dismissal for asserting a statutory right is covered by section 104 of the Employment Rights Act 1996.  It occurs when an employee complains to their employer about any of their statutory rights, for example, unpaid wages and it results in them being dismissed.  Section 104 sets out specifically what statutory rights are covered.  This does not have to be the reason for the dismissal but if the employee can show some causal connection the odds would be stacked in the employee’s favour. 


A recent case has brought section 104 to the forefront; In Spaceman v ISS Mediclean Ltd t/a ISS Facility Service Healthcare, during a disciplinary hearing the employee complained that his employer had pre-determined the outcome of the hearing which did end in dismissal for sexual harassment and assault.  He then claimed to an employment tribunal that it was the assertion of his right not to be unfairly dismissed during the hearing was the reason for his dismissal.  The Tribunal judge held that section 104 requires an actual breach of a statutory right rather than just a threat; the Employment Appeal Tribunal agreed with the tribunal’s finding.

Last but not least claims under the Public Interest Disclosure Act 1998 for Whistle Blowing is also an exception to the two year rule and occurs where an employee reports some illegality in the employers practices.  In comparison a complaint of this nature can apply where the breach has not actually occurred!

BALI Registered members can login to their online account or call the advice line if you are not sure what effect dismissing a member will have on your business.

Article sourced from BALI HR and Health & Safety Service

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