Don’t leave it until the 11th hour!

Before dismissing an employee, one of the first things employers review is their length of service. An employee must have two years’ continuous service in order to gain unfair dismissal rights.


Where an employee has fallen just short of two years’ service, it is common for employers to assume that they are able to dismiss the employee, without the employee having gained unfair dismissal rights. Unfortunately, it is not as simple as that.


Following the recent case law of Lancaster and Duke Ltd V Wileman, the effective date of termination (EDT) may be extended to the date on which the statutory minimum notice expires and therefore, this could push the employee past their two-year mark.


But what happens where the employee is summarily dismissed?


I refer back to the case Lancaster and Duke Ltd v Wileman. Wileman (W) was summarily dismissed for gross misconduct two days before her two-year service mark. W lodged an unfair dismissal claim and her employer argued that she did not have the necessary two years’ service. However, W argued that she was entitled to the statutory minimum notice of one week, and this would extend her EDT, taking her length of service past the two-year mark. The Employment Tribunal agreed with W and upheld her unfair dismissal claim.


The employer appealed this decision, and this was allowed by the EAT.


The EAT considered s.86(6) ERA which states the ‘right of either party to a contract of employment to treat the contract as terminable without notice by reason of the conduct of the other party.’


The EAT decided that where an employer has summarily dismissed an employee, where it is entitled to do so, then the employee is not entitled to statutory notice and is unable to extend the EDT. Therefore, if the ET found that W had been guilty of gross misconduct, then the employer had every right to terminate the contract without notice.


In summary, an employment tribunal will first look to see whether the employer was entitled to dismiss without notice, before determining whether the EDT is to be extended or not. Therefore, it would not be wise to label the reason for dismissal as ‘gross misconduct’ purely to avoid having to apply the statutory minimum notice.


The principal point to take from this article is… don’t leave it until the 11thhour!!


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