Protection from Unfair Dismissal - Statutory Notice and Gross Misconduct

No, held the Employment Appeal Tribunal (EAT) in the case of Lancaster and Duke Ltd v Wileman, holding that an employer retains the right to dismiss without notice where an employee has committed gross misconduct and the statutory weeks' notice therefore should not be applied.

The Facts

The Claimant was employed as a recruitment consultant from 22 September 2014. She was summarily dismissed (ie without notice) for gross misconduct on 20 September 2016, two days short of having the necessary two years continuous employment to bring a claim of unfair dismissal.

The Claimant brought a claim to the Employment Tribunal (ET) for unfair dismissal, arguing that her length of service was extended by the statutory minimum notice period of one week and that she therefore had sufficient service to bring the claim.

Relevant Law

Under section 86(1) of the Employment Rights Act 1996 (ERA) an employee with less than two years' service is entitled to the statutory minimum of one week's notice to terminate their contract. Section 86(6) ERA provides that this does not affect the right of a party to terminate the contract without notice where the reason for termination is the conduct of the other party.

Under section 97(2) ERA, where an employment contract is terminated without the statutory notice required by section 86 being given, the date of termination of the contract for the purposes of calculating continuity of employment for unfair dismissal is deemed to be the date on which that notice would expire had it been given.

Employment Tribunal

The ET applied section 97(2) and held that the Claimant was able to bring a claim of unfair dismissal. The ET's view was that the statutory minimum notice should be added when calculating the Claimant's continuity of employment.

The Respondent appealed.

Decision of the EAT

The EAT upheld the appeal. They found that section 97(2) was subject to the employer's right to terminate without notice where an employee is guilty of gross misconduct (contained at section 86(6)). The ET had been wrong to hold otherwise and the week of notice should not have been automatically applied.

The ET had not addressed the question of whether the Claimant was guilty of gross misconduct which entitled the Respondent to dismiss her without notice. The case was therefore remitted back to the ET.

Best Practice

This case makes clear that where an employer can legitimately terminate an employee's contract without notice for gross misconduct, the statutory notice period of one week cannot be added when calculating whether the employee has sufficient continuity of service to bring an unfair dismissal claim.

However, where an employer is considering ending an employee's employment within the first two years of employment it is always best to take action in good time to avoid the issues in this case arising.

For more information please contact Michael Halsey in our Employment Law team on 020 7665 0842.