Normally an employee would need two years’ service to bring an unfair dismissal claim. However, there are several types of dismissal that can be unfair, regardless of length of service. This includes a dismissal relating to protected disclosures as per Section 103A Employment Rights Act 1996.
Mr Stubbs, the Claimant, was employed by Grafters Ltd, the Respondent, for seven months. Upon his employment ending, the Claimant submitted an Employment Tribunal claim alleging unfair dismissal and whistleblowing. The ET1 did not particularise what the protected disclosures were for the whistleblowing claim and the claim was dismissed as the Claimant did not have sufficient service to bring a regular unfair dismissal claim.
The Claimant appealed, the Employment Appeal Tribunal allowed the appeal. During the EAT hearing the Claimant disclosed that he was dismissed after complaining about being locked in a refrigeration unit, which was a breach of health and safety. Whilst not particularised sufficiently on the claim form, the Claimant could bring an unfair dismissal claim related to protected disclosures without two years’ service. The claim was remitted back to the Tribunal to deal with the substantial hearing.
The Takeaway Point
This case serves as a timely reminder to all employers that the two years’ service rule is not always a catch all defence to unfair dismissal. In dismissals relating to health and safety, whistleblowing, discrimination and assertion of statutory rights, the employee may still be able to claim a form of unfair dismissal.