The Employment Appeal Tribunal (EAT) has confirmed that if an employer is entitled to summarily dismiss an employee for gross misconduct, the statutory rules providing for the extension of the effective date of termination do not apply.

Lancaster and Duke Ltd v Wileman [2018] UKEAT/0256/17

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. It concluded that since she 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.

EAT decision

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. 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 remitted for this point to be heard.

Consequences

It had previously been assumed that the statutory provisions for the extension of the EDT did not apply in cases of gross misconduct, but this is the first decision of the EAT to confirm that is the correct interpretation of the law. Unfortunately, for the tribunal to reach a decision that the claimant is not entitled to an extension, it will first need to consider whether the employee had committed an act (or acts) of gross misconduct. For this reason, when termination of an individual’s employment is being contemplated by an employer, it is usually advisable to terminate at least a week before they accrue two years’ continuous service, meaning that they will be unable to pursue a claim for unfair dismissal.

The content of this article is for general information only. For further advice, please contact Liz Stevens or another member of Birketts’ Employment Law Team.

This article is from the July 2018 issue of Employment Law Update, our monthly newsletter on employment legislation and regulation. To download the latest issue, please visit the newsletter section of our website. Law covered as at July 2018.

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