Parkinson v Ministry Of Defence [1998] UKEAT 520_98_2407

EAT
Parkinson v Ministry Of Defence
[1998] UKEAT 520_98_2407 · 1998-07-24

JUDGE J HULL QC :

This is an appeal to us Mr Peter Parkinson who has been employed, though not for very long, as Verger at Pirbright Garrison Church. His employment began on 2 October of last year and on 11 December he was given five weeks notice by the Colonel, the military man who was responsible for his employment. Then on 9 January he presented his complaint to the Industrial Tribunal. He complained of unfair dismissal and asked for reinstatement or, I think it was, "re-engagement".Looking at his IT1, he put as his cause of complaint unfair dismissal, termination of employment. There was an answer to that from the MoD (with the Treasury Solicitor acting for them, of course) that starts at page 9 of our papers and at page 11 they set out grounds, indeed, they go on - they make a number of complaints - we are not concerned with complaints at all, at the moment, but they made complaints about Mr Parkinson and said that, therefore, he was dismissed for these reasons. But they said:"It is averred that the Tribunal does not have jurisdiction to hear the Applicant's complaint of unfair dismissal. The Applicant was not continuously employed for a period of not less than 2 years as required by section 108 of the Employment Rights Act 1996. The Applicant was employed from 2 October 1997 to 14 January 1998." (That being when his notice expired.)Well, in due course they applied to the Industrial Tribunal to strike out the Application which had been made by Mr Parkinson and that is exactly what the Tribunal, acting by its Chairman, did. The Chairman said in his reasons, which start at page 4:
"In exercise of the powers conferred on me by Rule 13 of Schedule 1 of the Industrial Tribunal's Rules I hereby Order that the Originating Application be struck out it being frivolous in the sense of having no real prospect of success."
And the Chairman said in giving reasons for what he had done:
"Section 108 of the Employment Rights Act 1996 provides that the right not to be unfairly dismissed only applies to those who have enjoyed more than two years continuous employment. The Applicant had been employed for only 3 months.
The Tribunal cannot therefore afford him a remedy for unfair dismissal. His complaint has therefore no prospect of success and must be struck out.For good measure the Chairman said he was satisfied that the case of Seymour-Smith had no application to the case.It is from that Order that Mr Parkinson appeals to us. He invites our attention to section 108 of the Employment Rights Act which now, in succession to earlier Acts, qualifies the right to complain of unfair dismissal. Who can complain? Section 94 is now the section under which you can complain of unfair dismissal and section 108(1) says section 94 does not apply to the dismissal of an employee "unless he has been continuously employed for a period of not less than two years ending with the effective date of termination." In other words, section 94 having given a right not to be unfairly dismissed, section 108 takes that away from people with less than two years employment. But then, section 108(1) is itself taken away so as, in effect, to restore the right to complain of unfair dismissal and section 108(2) of the Act provides as follows: a long list of sections is given under which that limitation of time, saying that you have to be employed for two years, does not apply. There are such matters as dismissal by reason of pregnancy, dismissal of a person because they have complained about safety matters: matters of that sort, there are all sorts of exceptions to the rule but the one to which our attention is invited to by Mr Parkinson is section 104. Section 104 says as follows:
"An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee- (a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or (b) alleged that the employer had infringed a right of his which is a relevant statutory right.
Suppose a man rightly or wrongly complains that his employer has unfairly dismissed him and, in due course, it is held either that he has been unfairly dismissed or has not been unfairly dismissed, whatever it may be, or if he complains of other matters under the Act then, if he remains in employment after that and his employer says, "right, because you have asserted this statutory right against you I am going to sack you" then the employee can complain of that dismissal by saying, "look, the reason that I was dismissed is that I asserted a statutory right under the Act (see section 104) and therefore under section 108 I can complain of unfair dismissal notwithstanding the fact that I have been less than two years employed".What is said here, by Mr Parkinson, is not that he was asserting a statutory right under the Employment Rights Act but that he was asserting a fundamental human right under Article 6 of the Convention on Human Rights. He says that what in fact had happened was this; that he had addressed himself to two ladies, in a way which they may or may not have found welcome, but at any rate, for various reasons, that met with disapproval and what happened was that the Colonel, having heard of that and looked into that, decided, having given warnings, that Mr Parkinson should be dismissed. "All I was doing", says Mr Parkinson, "is asserting a fundamental human right to make friendships, romantic friendships, with certain ladies." Does that bring him under section 104? Does that bring him under section 108? So that he can complain of what has happened and launch his complaint in an IT1 complaining of unfair dismissal although he had only been employed since 2 October 1997?To us the answer is perfectly plain. He cannot. The Industrial Tribunal was not only entitled but bound to strike out this Application because it asserted a right which simply could not be asserted. It is perfectly true that had he not been given proper notice Mr Parkinson could have complained, and perhaps obtained damages for dismissal without proper notice and a Tribunal might be persuaded to allow him to amend his Application to claim that very limited remedy. That though was not the position. Mr Parkinson has sent to us the letter which terminates his employment and gives him no less than five weeks' notice. So on any view he has had, on the face of it, sufficient notice and therefore he cannot claim damages for breach of contract. He appeals to us against the striking out order but it appears to us there are no grounds on which he can possibly succeed. In those circumstances, since we can find no point of law, our duty is to dismiss this appeal at this stage and we so order.