It is settled law that to succeed in a complaint of automatically unfair dismissal for asserting a statutory right under s.104 Employment Rights Act 1996 there must have been an infringement of a statutory right, not merely an anticipation or threat of future infringement (see Mennell v Newell and Wright (Transport Contractors) Limited [1997] IRLR 519 and Spaceman v ISS Mediclean Limited T/A ISS Facility Service Healthcare [2019] IRLR 512.
In this case the Appellant (Claimant) had made a valid assertion that the Respondent’s instruction to work a particular shift pattern or rota had infringed her rights under Regulation 11 Working Time Regulations 1998. It was not necessary for the impugned shift or work pattern to have been completed for the alleged infringement to have occurred: it was the instruction which was alleged to have infringed her rights. Her assertion therefore came within the scope of s.104 Employment Rights Act 1996. The appeal succeeded, the Tribunal judgment substituted for a finding of automatically unfair dismissal and the case referred back to the ET for a remedy hearing.
[2021] UKEAT 0153 – 20 – 2704
Bailii
England and Wales
Updated: 19 October 2021; Ref: scu.667946
