Qualifying Service and Unfair Dismissal

The Employment Appeal Tribunal (EAT) overturned an Employment Tribunal decision in Lancaster and Duke Ltd v Ms V Wileman and held that the effective date of summary termination of an employee’s employment contract was not extended by the employee’s right to the statutory minimum notice, taking them over the two year service and so entitling them to bring an unfair dismissal claim, where their employer dismissed them for a gross misconduct offence.

The Claimant worked as a Recruitment Manager for a small employment agency (the “Respondent”). The Claimant was dismissed for gross misconduct (in relation to incidents of unacceptable behaviour towards colleagues and a third party), just 2 days before she reached 2 years’ service which is usually required in order to be eligible to claim unfair dismissal.

The Claimant brought an unfair dismissal claim in the Employment Tribunal relying on the provisions in the Employment Rights Act (ERA) 1996 which allows the applicable statutory minimum notice period to be added for the purposes of calculating whether an employee has the necessary 2 years’ service to qualify in bringing an unfair dismissal claim.

The Claimant argued that the statutory minimum notice period of one week should have been added onto her termination date so as to take her over the qualifying period for unfair dismissal. The Respondent argued that, as the Claimant had been dismissed for gross misconduct, she was not entitled to add on the statutory notice period.

The Tribunal found in favour of the Claimant but this decision was overturned by the EAT which found that the provisions of the ERA did not prevent employers giving no notice to employees in cases of gross misconduct and the provisions enabling statutory minimum notice to be added did not apply.

The case has been remitted to the Tribunal to make findings of fact as to whether the employee had committed gross misconduct (GM) with the EAT commenting that the Tribunal had not specifically made a finding whether the Claimant was guilty of GM and therefore the issue needed to be further considered by the Tribunal.

This is a welcome decision for employers who may awkwardly find themselves in a position where they have summarily dismissed an employee who is close to achieving two years’ qualifying service. Where an employer dismisses an employee for gross misconduct, the employee will not be able to add on the statutory notice period to bring them over the two years for them to qualify bringing an unfair dismissal claim in the Employment Tribunal.

In this case, there appeared to be a question mark as to whether the misconduct did constitute gross misconduct so employers should therefore ensure they are absolutely certain when deciding whether a misconduct offence does amount to gross misconduct, especially when the employee is close to the two year service mark.