The claimant claimed that he was unfairly dismissed because he had raised health and safety concerns and/or because he had asserted statutory rights.The claimant also alleged that his dismissal was automatically unfair, falling into the exceptions to the 12 months continuous employment that is normally required to bring a claim for unfair dismissal. The respondent asserted that the claimant did not have the requisite period of continuous employment to bring his claim.

The claimant raised numerous health and safety concerns following a regulatory body inspection and made further contact with senior staff regarding concerns about staffing numbers. Senior staff later met to discuss the claimant’s refusal to accept that there would not be an increase in his annual bonus; the deterioration in working relationships, his attitude to work; and his contribution as a team player. As the claimant had not worked for the respondent for 12 months the respondent decided that it would not follow the statutory procedures or afford to the claimant a thorough investigation and an opportunity to appeal. The tribunal were satisfied that the key factors in the claimant’s dismissal were his persistent demand for more staff on duty at night and for a bigger bonus payment. The unanimous decision of the tribunal is that the claimant was unfairly dismissed.

Practical lessons from this decision

The most significant outcome of the case concerns the burden of proof. The claimant’s representative submitted that where an employee, claiming unfair dismissal, lacks the 12 months continuous employment and is seeking to rely on the exceptions to that requirement the legal burden of proof is neutral. However, the tribunal reinforced the decision of Maund v Penwith District Council [1984] IRLR 24; [1984] ICR 143 that the burden will be on the employer unless the employee does not have one year’s service and needs to establish that the tribunal has jurisdiction to hear the claim in which case the onus will be on the employee.