Asserting statutory rights

Similarly, under ss.104A and 104B of the ERA, it is automatically unfair to dismiss an employee if the reason, or principal reason, for the dismissal is that:

Under s.105 of the ERA, it is also automatically unfair to select an employee for redundancy for any one of the above reasons.

Relevant statutory rights

A "relevant statutory right" is any right conferred by the ERA that may be the subject of a complaint or reference to an employment tribunal, the right to minimum notice, any one of certain specified rights under the Trade Union and Labour Relations (Consolidation) Act 1992 ("the TULR(C)A") or any right conferred by the Working Time Regulations 1998 (see s.104(4) and below ). The protection provided by s.104 is far wider than existing case law suggests, and extends to those categories of employee given special treatment under the ERA, such as health and safety representatives, occupational pension scheme trustees and employee representatives.

Employees who, on the face of it, appear to fall within such a special category but who in fact turn out to be excluded, may find that s.104 is their only means of bringing a complaint. In Williams v ASDA Stores Ltd, for example, an employment tribunal made a preliminary ruling that Mr Williams was not entitled to the protection of the Sunday Trading Act 1994 because he was not a "shopworker" for the purposes of that Act. He was therefore not entitled to bring a claim under s.101 of the ERA, which provides that dismissal for refusing to work on a Sunday is automatically unfair. The only possible cause of action open to him, since he had less than two years' service, was a claim under s.104 that he had made an allegation protected by that section.

However, certain rights have been held not to be "relevant statutory rights". In Capitol Security Services Ltd v Blake, for example, Mr Blake's new employer had sought to reduce his rate of pay following a transfer of the undertaking in which he had worked. He therefore resigned. But because he was over the retirement age, he was unable to bring a claim of "ordinary unfair dismissal". Instead he brought a claim under s.104, alleging that his "statutory right to have his terms and conditions of service maintained" had been infringed. The EAT inferred that this was a reference to his rights under reg. 5 of the Transfer of Undertakings (Protection of Employment) Regulations 1981 ("the 1981 Regulations"). It reaffirmed that s.104 does not apply to all statutory rights, only to "relevant" ones, which are defined exhaustively by s.104(4). Rights under reg. 5 (if such they be) are not among them. They are not conferred by the ERA, the 1981 Regulations having been made under the European Communities Act 1972, and nor are they conferred by any of the specified sections of the TULR(C)A or by the Working Time Regulations 1998.

Asserting a statutory right

An employee can assert a relevant statutory right in one of two ways: by bringing proceedings against his or her employer to enforce it, or (which is more common in practice) by alleging that his or her employer has infringed it.

Section 104(2) states that it is immaterial "(a) whether or not the employee has the right, or (b) whether or not the right has been infringed". However, in McPartland v Pybus, the EAT said: "The allegation must relate to an infringement of a statutory right which has taken place. It matters not whether the allegation is correct in the sense that there has been an unauthorised deduction or that the employee was entitled to complain that there had been an unauthorised deduction. The key to the right under s.104 is that there had been an infringement before the allegation is made."

In McPartland, the infringement was an unauthorised deduction from wages, contrary to s.13 of the ERA, which did not take place until two days after the allegation was made. So that related to a prospective deduction, and to an anticipatory breach of contract, which the EAT held to be insufficient for the purposes of s.104.

In Mennell v Newell & Wright (Transport Contractors) Ltd, which is still the leading case on the subject, one of the grounds on which the employee's claim under s.104 failed was that there had been no actual infringement of his right under s.13 of the ERA, only the threat of such an infringement in the future. The EAT concluded that, under s.104, there is no requirement that the employer has actually infringed the right. The EAT also commented that if an employer sought, by threat of dismissal, to impose a variation of a contract of employment to incorporate a term that negated the employee's right under s.13, then that was, or might be, an infringement of the statutory right at the time the threat was made.

The Court of Appeal agreed with the EAT that the tribunal had been wrong to construe s.104 as confined to cases where the right under s.13 of the ERA had been infringed. The Court added: "It is sufficient if the employee has alleged that his employer has infringed his statutory right and that the making of that allegation was the reason or the principal reason for his dismissal. The allegation need not be specific, provided it was made reasonably clear to the employer what right was claimed to have been infringed. The allegation need not be correct, either as to entitlement to the right or as to its infringement, provided that the claim was made in good faith. The important point for present purposes is that the employee must have made an allegation of the kind protected by [s.104]: if he had not, the making of such an allegation could not have been the reason for his dismissal."

If the EAT's comments in Mennell are correct, the question remains whether s.104 might serve to undermine an employer's strategy of terminating an employee's contract of employment with notice and offering to re-engage him or her on new terms. Although this would be a potentially fair dismissal if the employee rejected the offer and there were good sound business reasons, if the employee asserted in good faith infringement of a statutory right before the dismissal, then s.104 might come into play. The main stumbling block, however, would be causation, as it would be difficult to establish that the assertion, rather than the simple fact that the employee refused the new terms, was the reason for the dismissal.

Requirement of good faith

Section 104(2) also states that "the claim to the right and that it has been infringed must be made in good faith". A genuine but mistaken belief is therefore sufficient.

In Philip Hodges & Co v Crush, Ms Crush reluctantly agreed to a reduction in salary as an alternative to dismissal. Later, after taking legal advice, she asserted that her employer had made an unauthorised deduction from her wages contrary to s.13 of the ERA. She was then dismissed. The EAT upheld an employment tribunal's decision that, having agreed to the deduction, no unauthorised deduction had taken place but that the reason for her dismissal was the assertion of a relevant statutory right. The fact that her employer had not made any unlawful deduction was irrelevant, given the tribunal's finding that the claim was made in good faith.

No need to specify right

Section 104(3) states that it is sufficient for the employee to make it "reasonably clear" to the employer what the right claimed to have been infringed was, without specifying it. Determining what is "reasonably clear" is a question of fact and is open to considerable conjecture.

In Jiminez v Nelabrook Ltd, Ms Jiminez repeatedly asked her employer for her correct tax code in order to ascertain whether or not it was in fact paying tax on her behalf. When her employer dismissed her, Ms Jiminez claimed that she had been dismissed for asserting her right to an itemised pay statement under s.8 of the ERA.

The tribunal found that the principal reason for her dismissal was merely her requests for the information about her tax code. Although she did not have to refer in terms to s.8, Ms Jiminez was still under an obligation to make it "reasonably clear" to her employer what the right was that she claimed had been infringed. The EAT felt that it had been incumbent on her, at the very least, to have asked for the details that would have been contained in an itemised pay statement. As she had not done so, she had not asserted a relevant statutory right.

In Robinson and others v Hudson Bay Clipper Co Ltd (in liquidation), employees wrote a joint letter to their employer, who had reneged on an agreement to pay them double if they worked on Good Friday, saying that they would resign at the end of the week if the dispute was not resolved. The employer summarily dismissed them. An employment tribunal dismissed their claims under s.104 but, on appeal, the EAT specifically referred to the fact that the letter had been drafted by laymen, and should therefore be read as a whole. As the "thrust" of it was to allege an infringement of a relevant statutory right, the employees were entitled to the protection of s.104.

In Mennell, another ground on which the employee's claim failed was that he was unable to identify when, where, to whom and in what terms he had alleged that his employer had infringed his right under s.13 of the ERA, in requiring him to sign a new contract of employment which included a provision allowing the employer to make a deduction from his wages in respect of training costs. The most he was able to say was that he had informed management that he would sign the contract if amendments relating to the proposed provision for deductions from wages were made.

Burden of proof

In "ordinary unfair dismissal" claims, where dismissal is found or admitted, the burden of proof is on the employer to show what was the sole or principal reason for the dismissal and that this falls within the category of reasons that the law regards as being potentially fair. If the employer adduces evidence that appears to show that the reason for the dismissal is admissible, then an evidential burden passes to the employee, but it is only to cast doubt on the employer's reason and show that there is a real issue as to whether that was the true reason (Maund v Penwith District Council).

The only exception to this is where the employee does not have the necessary qualifying period to bring an unfair dismissal claim in the ordinary way and is therefore seeking to establish that the employment tribunal has jurisdiction to hear the claim. Section 104 claims, for which no qualifying period is necessary, fall within this exception: the reason for the dismissal has to be established to confer jurisdiction on the tribunal, placing the burden of proof on the employee (Smith v Hayle Town Council).

Causation

Determining whether or not there is a nexus between the dismissal and the prescribed reason is once again a question of fact. In J P Fitzpatrick (Cable TV) Ltd v Whicker, the decision to dismiss Ms Whicker was taken shortly after her overtime claim was refused. She had then complained that she was not being paid for what she was owed, and said she would not work unpaid overtime. That amounted to an assertion by her of a relevant statutory right.

An employment tribunal inferred that this was the reason or principal reason for her dismissal, having rejected various alternative reasons advanced by the employer, and the EAT held that the tribunal had not erred in law. The tribunal's approach was consistent with the correct application of the burden of proof, which rested on Ms Whicker throughout, and the tribunal had not failed to consider the necessary causative link between the assertion of the right and the dismissal. Having complained that she had not been paid for overtime worked, Ms Whicker resolved to operate what was in effect a personal overtime ban. It was for this reason that she was dismissed, and not for the reasons advanced by the employer after the event. The causative link was established.

The difficulties in determining what was the real reason for a dismissal is shown in Robinson. The employment tribunal decided that the dismissals were not due to the fact that the employees had asserted their statutory rights within s.104, but were the result of the employer's reaction to the "blackmailing effect" of their letter. The EAT found that the employment tribunal had focused on the proximate cause of the dismissal and was, therefore, in error. It took the view that the application of the section did not depend on nuances, or nuances that the employer may have picked up from the letter.

As issues relating to causation are primarily evidential, there is a danger that a valid s.104 claim may be obscured. This was addressed in Porter v Desklink Ltd t/a Victoria Office Furniture (in liquidation). An employment tribunal was satisfied that Mr Porter was dismissed because of frustration caused by his continual late arrival for work, and decided that his request for a statement of employment particulars under s.1 of the ERA played no significant part in his dismissal.

On appeal, the EAT warned that employment tribunals "should be careful to avoid emasculating the right which an employee has to be given written particulars of the terms and conditions of his employment". The tribunal had concluded that the reason for Mr Porter's dismissal was the very dispute that gave rise to his request for statutory particulars. In those circumstances, employment tribunals should not be quick to find that the reason for the dismissal was other than the fact that the employee had asked for his particulars. If the employment relationship was looked at as a whole, it was plain that any of the complaints that the employer had about Mr Porter as an employee stemmed only from the fact that it had recruited him on a basis that left the extent and nature of his duties unclear. It was the employer's fault that these problems arose, and it was its breach of the ERA that led to this difficulty.

The manner of making the allegation is also crucial, in that it can take an employee outside the protection of s.104. In Ballinger v Viatel UK Ltd, Mr Ballinger did not receive his shift allowance to which he was entitled for working nights. There followed an exchange of e-mails in which Mr Ballinger used offensive language and copied in senior managers. Following his dismissal for abusing the e-mail system, he complained to an employment tribunal that he had in fact been dismissed for asserting a relevant statutory right, namely his right to the unpaid shift allowance. The tribunal dismissed the complaint. It found that it was the way in which Mr Ballinger had asserted his right, and "the gratuitous rudeness used", that the employer had found unacceptable. That was why it had dismissed him. On appeal, the EAT held that that was a perfectly clear finding which the tribunal had been entitled to make.

Another salutary tale is afforded by Papadakis v Mermaid Inn Ltd. Mr Papadakis, who was employed as a waiter, claimed he was not receiving an appropriate share of the service charge. He wrote to his employer informing him of this and asking to be allowed to check the relevant bills. Subsequently, he was dismissed and made a claim under s.104. After hearing evidence from both sides, and preferring that of the employer's witnesses wherever there was a conflict, the employment tribunal decided that the real reason for his dismissal was gross misconduct - "his behaviour was threatening and menacing and intolerable" - and not, as he claimed, that he had alleged that his employer had infringed his statutory right not to have unlawful deductions made from his wages. On appeal, the EAT was quite unable to say that the tribunal's decision had been perverse.

Constructive dismissal

Causation is particularly difficult to establish in constructive dismissal situations. This was acknowledged in Blake, where the EAT said: "... we appreciate that while the crucial question whether an allegation by the employee of infringement of a relevant statutory right was 'the reason ... or ... principal reason' for the dismissal may be relatively straightforward in cases of direct dismissal by the act of the employer, its resolution is potentially more complex in a case of alleged constructive dismissal such as this and the attempt to answer it may perhaps appear to be an artificial exercise. Nevertheless it must in our view be answered."

It was answered in Scott v Lowe. An employment tribunal said that, although there is no incompatibility between s.104 and the definition of "dismissal" in s.95 of the ERA, an employee can resign only in consequence of an employer's action; the only possible allowable cause of resignation must be some specific activity of the employer in consequence of the allegation of infringement. Section 104 does not, for example, protect an employee who suffers an unlawful deduction from wages, only an employee who is dismissed because there has been an allegation of such an unlawful deduction. The distinction is vital.

In Scott, Ms Scott raised concerns after a couple of pay cheques failed to be met. Her employer paid her within two or three days of that conversation, having made it clear that she was entitled to be paid and would be paid as soon as that was possible. Dissatisfied, Ms Scott did not come back to work and wrote asking for her P45. The tribunal that determined her claim under s.104 said that if there had been some evidence of Ms Scott complaining of non-payment and her employer saying: "you have not been paid and I have no intention of paying you", Ms Scott would have been entitled to resign and rely upon that statement both as a reason for her resignation and in support of a claim under s.104.

However, the principal reason for the resignation was Ms Scott's entirely legitimate and understandable concern that her employer's financial position was such that there was some doubt as to whether she would be paid properly and in full on subsequent occasions. She was not prepared to work in those circumstances. This did not come within s.104. On appeal, the EAT did not consider that the tribunal's approach to the "difficult issue" of the relationship between s.104 and a constructive dismissal case could be faulted.

Remedies

A complaint of unfair dismissal made under s.104 must be presented to an employment tribunal within the usual three-month time limit (see s.111(2) of the ERA), and the remedies that the tribunal may grant a successful complainant are no different from those available to an "ordinary unfair dismissal" complainant who wins his or her case (that is, reinstatement or re-engagement, or compensation).

Unfair dismissal waivers

Under s.197(1) of the ERA, an employee who enters into a fixed-term contract for one year or more can agree in writing to waive any claim he or she might have for unfair dismissal, where the dismissal consists of non-renewal of the contract at the expiry of its term. As from 30 September 1999, when s.18(6) of the Employment Relations Act 1999 was brought into force, s.197(1) no longer applies to dismissals that are automatically unfair by virtue of s.104.

Asserting statutory rights: main points to note

Relevant statutory rights

The "relevant statutory rights" are as follows:

The Employment Relations Act 1999 will add to the above list the right not to suffer detriment under s.47C of the ERA (leave for family and domestic reasons); the right to time off for dependants (s.57A of the ERA); and the right to parental leave (s.76 of the ERA).

CASE LIST

Ballinger v Viatel UK Ltd 15.3.99 EAT 1323/98

Capitol Security Services Ltd v Blake 27.10.97 EAT 961/97

J P Fitzpatrick (Cable TV) Ltd v Whicker 19.6.98EAT 1165/97

Jiminez v Nelabrook Ltd 29.1.98 EAT 614/97

McPartland v Pybus 3.6.99 EAT 170/99

Maund v Penwith District Council [1984] IRLR 24

Mennell v Newell & Wright (Transport Contractors) Ltd [1997] IRLR 519 and [1996] IRLR 384

Papadakis v Mermaid Inn Ltd 14.2.95 EAT 759/94

Philip Hodges & Co v Crush 20.3.96 EAT 1061/95

Porter v Desklink Ltd t/a Victoria Office Furniture (in liquidation) 5.3.98 EAT 1327/95

Robinson and others v Hudson Bay Clipper Co Ltd (in liquidation) 21.11.96 EAT 1007/95

Scott v Lowe 14.12.98 EAT 780/98

Smith v Hayle Town Council [1978] IRLR 413

Williams v ASDA Stores Ltd 1.7.97 EAT 306/96