Mr J Massa v The Salvation Army Trustee Company — 2022

Mr J Massa brought a claim for constructive unfair dismissal arising from employment with the Salvation Army Trustee Company between 26 April 2020 and 19 July 2021. The tribunal noted that he did not have two years' continuous service, so the claim would ordinarily be outside jurisdiction unless it could arguably fall within an automatic unfair dismissal exception.

At the preliminary hearing, the claimant described complaints that he had been required to work in an unsafe environment, with alleged failures to provide protective equipment, risk assessments, supervision or training, and that he later contracted hepatitis B. The tribunal said that any claim that the respondent negligently or in breach of duty caused hepatitis B was a personal injury claim, which would fall to be brought in the County Court rather than the employment tribunal.

The tribunal accepted that the workplace allegations, if proved, could potentially amount to a fundamental breach of contract capable of supporting constructive dismissal, but only if the two-year service requirement were met. It then considered whether the case could arguably fall within s.100 Employment Rights Act 1996 or s.103A Employment Rights Act 1996. The judge concluded that the claimant was not alleging any detriment because he raised the matters by grievance or as a protected disclosure, and he had not been expressly dismissed for doing so.

On that basis, the tribunal held that the case was a standard constructive unfair dismissal claim requiring two years' service. Because the claimant did not have that service, the tribunal had no jurisdiction and dismissed the claim.