If an employee is dismissed for gross misconduct just short of 2 years service, s/he cannot add on statutory minimum notice so as to qualify to bring an unfair dismissal claim, found the Employment Appeal Tribunal (EAT) in Lancaster & Duke Limited v Wileman.
Ms Wileman was a recruitment manager in a small employment agency. She was dismissed for gross misconduct just 2 days before she had reached the 2 years of employment usually required in order to be eligible to claim unfair dismissal.
She brought a tribunal claim for unfair dismissal anyway because the Employment Rights Act 1996 allows the applicable statutory minimum notice period to be added for the purpose of calculating whether an employee has the necessary 2-year qualifying service to be eligible to claim.
She therefore argued that the statutory minimum notice period of one week should be added onto her termination date so as to take her over the qualifying period for unfair dismissal. Her employer, Lancaster & Duke Limited, argued that as she had been dismissed for gross misconduct, she was not entitled to add on statutory notice.
The Employment Tribunal initially agreed with Ms Wileman but the decision was overturned by the EAT. It found that the ERA still enabled employers to give no notice in gross misconduct cases and the provisions enabling statutory minimum notice to be added did not apply. The case has been remitted to the Employment Tribunal to make findings of fact as to whether the employee committed gross misconduct.
The case provides reassurance for employers dismissing those close to the 2-year minimum qualifying periods for claims. Providing that they were entitled to dismiss for gross misconduct, then the employee will not be able add on notice so as to bring an unfair dismissal claim.