Case update (3): Unfair dismissal – termination date

Summary: When an employee is dismissed without notice, is the termination date always extended by the statutory notice period?

No, says the EAT, not in circumstances where the employee has committed gross misconduct. The case of Lancaster & Duke Ltd v Wileman is available here.

Facts:  The employee, Ms Wileman, was summarily dismissed for gross misconduct just two days before she had accrued the two years of continuous service necessary to bring a claim for unfair dismissal. The employer did not follow a disciplinary process and Ms Wileman was not given any right of appeal.

The Employment Rights Act 1996 provides for the effective date of termination (EDT) to be extended by the statutory minimum period of notice in circumstances where the employee is not given their proper notice entitlement. Ms Wileman presented a claim for unfair dismissal, and the Tribunal first had to decide whether she had sufficient continuity of service in order to pursue the claim.  The Tribunal concluded that since Ms Wileman would have been entitled to one week’s statutory notice, her claim could proceed. It subsequently upheld her claim for unfair dismissal on the basis that her employer had acted unreasonably in failing to investigate the alleged misconduct or to follow a proper procedure before dismissing her.

The employer appealed to the EAT.

The EAT upheld the appeal, confirming that the statutory provisions for the extension of the EDT do not apply in circumstances where the employer is entitled to dismiss the employee without notice for gross misconduct. The Tribunal in this case had failed to make a finding on the question of whether Ms Wileham was in fact guilty of gross misconduct, so the case was sent back to the Tribunal to consider this point.

Implications:  This is the first decision confirming the common assumption that the extension of the Effective Date of Termination does not apply in cases of gross misconduct.

Unfortunately, for the Tribunal to reach a decision that an employee is not entitled to an extension, it will first need to consider whether the employee has committed gross misconduct. For this reason, when considering dismissing an employee without notice, it is usually advisable to terminate over a week before they accrue two years’ continuous service.  This provides the certainty that they will be unable to pursue a claim for unfair dismissal.