Dismissing an employee just before they get enough service to claim unfair dismissal, or perhaps just after… A recent case summarised by Ed McFarlane from Deminos.
It is unfortunately the case that employers sometimes have to make decisions in a hurry. If an employee is coming up to qualifying for unfair dismissal with two years’ service (one year in Northern Ireland), there is a ‘trap’ for the unwary that in calculating length of service, a legal device allows an employee to add on the statutory notice (one week) that they are entitled to in calculating length of service to the actual time served.
So, if the employee gets to two years’ service by adding in an extra week, then they can claim unfair dismissal, as the statutory notice takes them ‘over the line’. As dismissals in this situation may be done in a hurry and without a ‘reasonable investigation’, this would almost inevitably make a dismissal unfair if the employee gets to two years’ service.
However, a recent case at the Employment Appeal Tribunal has clarified the law in that if the employee has committed gross misconduct, then the employer is entitled to dismiss without notice, and the law does not allow the employee to add statutory notice to their service, as they can only add statutory notice if they are entitled to notice at all.
For example, an employee hired on 1stAugust 2016 would reach two years’ service on 31stJuly 2018, having worked 2 complete years (1stAugust 2018 would be two years and a day). If the employee is dismissed without notice in July 2018, then although employment ends on the date of dismissal, the time served will be calculated with a week’s notice running from the day after dismissal. So, unless the employee has committed gross misconduct (which the employer must prove), the employee will be entitled to claim unfair dismissal.
Here are two examples of how it works with a dismissal purporting to be immediate:
a) Dismissal on Monday 23rdJuly 2018: Statutory notice runs from the following day (another potential trap), from Tuesday 24thto Monday 30 July, the employee is one day short of two years’ service, even if they are blameless.
b) Dismissal on Wednesday 25thJuly 2018: statutory notice runs from Thursday 25thJuly and expires on Wednesday 1stAugust 2018, with two years’ service and the right to claim unfair dismissal.
Note that the wording of a dismissal without notice (or with short notice) is important. Also, don’t forget that other claims, such as discrimination or automatically unfair dismissal for, e.g. ‘whistleblowing’ are not affected by this rule.