Veitch Penny LLP - Exeter | Crediton, Devon

Case

Armstrong v Walter Scott Motors (London) Ltd
Employment Appeal Tribunal
(19 March 2003)

Issues

(1) Unfair dismissal
(2) Assertion of statutory right
(3) Holiday entitlement

Facts

The Applicant was employed in the sales team from November 1999. After ten months of employment, the Applicant wrote to the Respondent, a car dealership, complaining about his holiday entitlement. The staff handbook appeared to indicate that he would have to work for a year before he could take any holiday. He felt that the requirement was “morally indefensible”. He was dismissed from his employment in October 2000.

The Applicant made a complaint to the Employment Tribunal alleging that he had been unfairly dismissed for asserting a statutory right, namely the right to twenty days annual holiday, as provided by the Working Time Regulations 1998. The Regulations provided for a progressive entitlement to twenty days annual holidays for each worker covered by them.

The Tribunal held that the employee had been dismissed for writing the letter. It noted that the Applicant had taken steps to consider whether it was appropriate to write it, and, had sent it to the Head of the company; contrary to advice he had received from a colleague.

It then had to consider whether the dismissal was in connection with a statutory right (under section 104(1) of the Employment Rights Act 1996). This provided that a dismissal would be regarded as unfair if the reason or principal reason for it was that the employee had “(b) alleged that the employer had infringed a right of his which is a relevant statutory right”. The legislation then stated that it was immaterial whether the employee actually had the right or not, or whether such a right had actually been infringed. The claim must be made in good faith, and it must be “reasonably clear” to the employer what the right the employee was claiming to be infringed.

The Tribunal found that as the Applicant had not suggested that the Respondent had failed to comply with any statutory right (in contrast to any contractual or moral obligation) the letter did not fall within section 104(1). On this basis, his complaint was dismissed.

The Applicant appealed the decision, submitting that his letter did make it reasonably clear that he was claiming a breach of a statutory right.

Decision

The Appeal would be allowed. The Appeal Tribunal found that the Applicant had indeed made it reasonably clear that he had a right not to have to wait for a year before he could take holiday.

Comments

In this case, the Appeal Tribunal found that the Applicant had a right that had been infringed. His letter, taken in context, was sufficient to indicate he was making an allegation that his employer was infringing his rights, although it did not specifically mention the right itself. It was further noted that the context of the letter was conciliatory in that it sought to continue the working relationship.