In the recent case of Lancaster & Duke Ltd v Wileman, the Employment Appeal Tribunal considered the interaction of statutory minimum notice periods and the extension of the effective date of termination. More specifically, the case considered whether an employee, who was dismissed for gross misconduct, could extend her length of service by the statutory minimum notice period in order to allow her to bring a claim of unfair dismissal.
Background to the case
The claimant started working for her employers, Lancaster & Duke Ltd, on 22nd September, 2014. She was dismissed, without notice, for gross misconduct on 20th September 2016. On the face of it, Ms. Wileman did not have two years’ continuous service and did not, therefore, have sufficient qualifying service to make an unfair dismissal claim. Nonetheless, she brought a claim for unfair dismissal in the employment tribunal.
Ms Wileman contended that the statutory continuity provisions of the Employment Rights Act 1996, if correctly interpreted, meant she had the requisite two years’ service to bring a claim. Her argument was based on a combination of s86(1) and s97(2) of the Act. In terms of s86(1), as she had more than one month’s service, she was entitled to a minimum period of notice of one week. In terms of s 97(2) ‘where a contract of employment is terminated by the employer” and “the notice required by section 86 to be given by an employer would, if duly given on the material date, expire on a date later than the effective date of termination … the later date is the effective date of termination.’ Accordingly, Ms. Wileman argued that if the statutory minimum notice entitlement which should have been given to her had been given, her effective date of termination would actually fall one week later, giving her over two years’ service. The tribunal agreed with her.
Appeal to the Employment Appeal Tribunal
An appeal was made to the EAT by Lancaster & Duke Ltd. The EAT held that since s97(2) refers to “the notice required by section 86”, that brought the entirety of s.86 into play, including s.86(6).
Section 86(6) gives an employer the right “to treat the contract as terminable without notice by reason of the conduct of the other party”. The EAT said that this section meant that the notional extension of one week did not apply in circumstances where the employee was lawfully dismissed for gross misconduct. They did not accept Ms Wileman’s argument that this section merely allowed the employer to terminate the contract of employment and did not determine the ‘effective date of termination’. In short, the EAT held that the right to add to add on one week’s notice to the period of continuous service did not apply if s86(6) applied.
The EAT therefore allowed the appeal and remitted the case to the tribunal to determine whether or not Ms Wileman’s actions amounted to gross misconduct.
Implications for your organisation
While it is now clear that if you dismiss employees with less than 2 years’ service for gross misconduct, those employees will not be able to rely on the statutory minimum notice period to reach the two-year qualifying service for unfair dismissal, it also seems clear that if conduct is wrongly characterised as gross misconduct, an employee dismissed in those circumstances will be able to rely on the minimum notice period to extend the effective date of termination.
Whether conduct amounts to gross misconduct will depend on the specific facts of the particular case and it is recommended that you contact our Employment Law Consultants here at Wirehouse for expert advice and guidance.