Gross Misconduct and Statutory Notice.

You may recall our recent bulletin about the importance of communicating the decision to dismiss an employee in person when there are important time limits at stake. Following on from this, the EAT judgement handed down last week in the case of Lancaster and Duke Ltd v Wileman considered whether an employee could extend their effective date of termination by the statutory minimum notice period to enable them to bring a claim for unfair dismissal.

To summarise the facts, Ms Wileman began her employment with LD Ltd on 22 September 2014 initially as a recruitment consultant and subsequently a recruitment manager, following the successful completion of her probationary period. There was evidence that she did not always get on with colleagues and clients, and allegations were made that she was rude and behaved “like a playground bully”. On 20 September 2016, just days before she acquired two years’ service, LD Ltd dismissed Ms Wileman summarily for gross misconduct without following any dismissal procedure or giving her the right of appeal.

Ms Wileman presented a claim of unfair dismissal at the ET, arguing that the statutory minimum notice period should extend her termination date by one week, which would give her the two years’ service she needed to bring the claim. The ET agreed with her that it should, allowing her claim for unfair dismissal to proceed.

On an appeal by LD Ltd, the EAT found that the ET erred by concluding that statutory notice had to be included in calculating service for unfair dismissal purposes, as an employer has the right to terminate without notice, which includes without statutory notice. Therefore, as long as LD Ltd had been entitled to dismiss without notice, no statutory notice could be added to their length of service. The case has therefore now been remitted to the ET to make findings of fact as to whether the employee actually committed gross misconduct.

Needless to say, an employer cannot just label a dismissal as gross misconduct to avoid the statutory extension to an employee’s termination date. This exception to the requirement to give statutory notice will rarely apply and the safest option is to dismiss well in advance of the last week before the employee’s two year work anniversary (also ensuring of course that notice of dismissal is communicated to the employee effectively!). Furthermore, it is best practice to always follow a fair dismissal procedure and give the employee the right of appeal, particularly bearing in mind that there are other claims (such as discrimination) that an employee can bring regardless of their length of service.

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