Stone v Burflex (Scaffolding) Ltd EA-2019-001183-RN

Appeal against a decision of the ET dismissing the claimant’s claim for automatically unfair dismissal under section 104 of the Employment Rights Act 1996 based on the assertion of a statutory right not to have unauthorised deductions from pay. Appeal allowed.

The Claimant complained when he wasn't being paid as much as what had been told to him verbally. He was dismissed following a meeting with the management. He brought a claim for unfair dismissal under section 104 ERA. The Respondent’s primary case had been that he was not dismissed but had resigned but the ET found that the Claimant had been dismissed. However, the ET decided that he had not asserted a statutory right (namely the right not to suffer unauthorised deductions from pay) and that the principal reason for his dismissal was not such an assertion but related to the availability of work and was the withdrawal of a concession to provide him with alternative work and was therefore redundancy or some other substantial reason. The Claimant appealed.

The EAT allowed the appeal. The finding that the Claimant had not asserted a statutory right was perverse and the EAT substituted a finding to the contrary. The finding as to the reason for dismissal involved errors of law in that (a) the employment judge had not asked himself why the Respondent had decided to withdraw the concession, and (b) the employment judge had identified a reason for dismissal which neither party had contended for without raising the matter with the parties before making a decision, when there were a number of submissions the Claimant might have made if the matter had been raised (in particular relating to section 105 ERA).

Published: 27/10/2021 16:18

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