It is unusual to see appeal cases dealing with claims brought under s104(1)(b) Employment Rights Act 1996 (“ERA”) which concerns a dismissal by reason of an employee asserting a statutory right. Spaceman v ISS Mediclean Ltd [EAT 0142/18] is one such case.


S was employed by M since October 2015 working as a porter on a nightshift.

In April 2017 female colleagues brought complaints of harassment and bullying against S with the result he was suspended.

On 14 June 2017 S was summarily dismissed. As he had less than two years’ service then in theory he could not bring an ordinary unfair dismissal claim.

One of the exceptions to the two year rule is a claim brought under s104 ERA which, as stated above, concerns dismissals for asserting a statutory right. These dismissals are automatically unfair if proven.

S alleged he told the disciplinary manager during his hearing that he had been forewarned by a colleague that he was going to be dismissed in any event.

S’s case, therefore, was that he was dismissed for making the above allegation during his disciplinary hearing, namely the right not be unfairly dismissed.

Section 104 ERA

The section states:
(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee:

(a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right; or

(b) alleged that the employer had infringed a right of his which is a relevant statutory right.
(2) It is immaterial for the purposes of subsection:

(a) whether or not the employee has the right; or

(b) whether or not the right has been infringed;
but, for that subsection to apply, the claim to the right and that it has been infringed must be made in good faith.
There are numerous examples of what sort of statutory rights can be infringed. They are pretty wide-ranging and include the right to time off for dependents, making a protected disclosure, the right to parental leave, and the protection of wages.

The purpose of s104 ERA is to prevent an individual being dismissed in retaliation to asserting his or her employment rights.

The Employment Tribunal

The Tribunal struck out S’s claim on the basis that s104(1)(b) requires the employer to have “infringed” the right in question – i.e. past tense. Therefore, if the assertion to this right can only be made after the dismissal, then it could not be relied upon as a reason for dismissal.

The Employment Appeal Tribunal (EAT)

The EAT confirmed that the wording of s104(1)(b) doesn’t provide for an allegation that there may be a breach in the future, rather it has got to have happened.


Until this decision there was still some degree of ambiguity about whether the threat of dismissal was sufficient to invoke s104(1)(b) ERA.

So, if for example an employee brought a claim alleging he had been dismissed for refusing to agree to a variation in his contract of employment (a provision which which had statutory effect like the 48 hour working time opt-out) then, based upon this decision, the employee would have to have been dismissed first (rather than just relying on the threat of dismissal) before s104(1)(b) was engaged.

There was some logic in S’s approach. He had evidence that his dismissal had already been determined, and thus the procedure was unfair – despite this, however, he had still not been dismissed.

CONTACT: Christopher Filor
EMAIL: cfilor@filorsolicitors.co.uk   TELEPHONE: 01647 231475
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This publication is not intended to provide legal or other professional advice and should not be relied upon as such. Readers should take legal advice before applying the information contained in this briefing.
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