Qualifying Service and Notice Periods in Unfair Dismissal claims

Anyone involved in or considering unfair dismissal claims, and, of course, UK employment lawyers, will be aware of the length of service requirement for bringing an unfair dismissal claim. While many potential unfair dismissal claims never get off the ground because the potential claimant does not have the requisite 2 years’ qualifying service, it is particularly frustrating for someone dismissed within mere days of achieving that milestone. In a recent case, closely watched by top employment solicitors, the Employment Appeal Tribunal considered whether Claimants in unfair dismissal claims could rely on the deeming provision in the Employment Rights Act 1996 to extend her length of service by the statutory minimum notice period and meet the qualifying service requirement.

The qualifying service requirements in unfair dismissal claims are contained in the Employment Rights Act 1996, familiar to all Employment claim solicitors. The right not to be unfairly dismissed in section 94 of the Employment Rights Act is subject a 2 year qualifying period of service – provided for in section 108(1) of the Act.

Section 86 of the Employment Rights Act provides for minimum notice that must be given by the employer to the employee depending on length of service, and by employee to employer regardless of length of service. In the case of an employee who has less than 2 years’ qualifying service with an employer, the employer must give a week’s notice to that employee. Any UK Employment lawyer will be able to explain the effect of section 86(6) - which provides that the right to notice does not affect the right of the employer or employee to terminate the contract without notice as a result of the behaviour of the other.

In some cases, section 97(2) of the Employment Rights Act allows an employee to extend the length of time he or she has worked for the employer by the length of the statutory notice period, to give a later ‘effective date of termination’ of employer. This can be material in cases where the employee is very close to the 2 year milestone when dismissed.

The Claimant worked as a recruitment manager for a small Employment agency. Her Employment commenced on 22 September 2014. The Claimant was competent in her role but clashed with one of the directors of the company, Mr Weaver. There were also issues with her behaviour towards others, including staff of the Respondent’s landlord, and other employees. However, no formal action was taken against the Claimant.

There was a heated exchange between the Claimant and Mr Weaver in August 2016, then some 4 weeks’ later another incident which prompted the Respondent to determine that it should summarily dismiss the Claimant for gross misconduct. Mr Weaver communicated this to the Claimant by phone and email on 20th September 2016 – 2 days before the Claimant would have achieved 2 years’ qualifying service.

The Employment Tribunal agreed with the Claimant that she should be allowed to rely on the statutory notice provision to add 1 week to the effective date of termination, thereby giving her 2 years and 5 days’ qualifying service. It rejected the argument that section 86 did not operate because of section 86(6) – and the right of the Respondent employer to terminate the contract without notice because of the Claimant’s conduct.

The Employment Appeal Tribunal did not agree with the ET’s decision. It found that section 97(2) – the ‘deeming’ provision – incorporated the whole of section 86 – not just 86(1). As a result, the correct interpretation is that although the effective date of termination can be deemed to be the date on which statutory notice would have expired, had that notice been given, this was subject to the right to dismiss without notice in certain cases. The Employment Appeal Tribunal also found that section 86(6) applied to statutory rights as well as contractual rights, and so was relevant for the purposes of an unfair dismissal claim. If the employer is entitled to dismiss without notice, the effective date of termination cannot be extended by the statutory notice period.

As the Claimant had only brought an unfair dismissal claim, and not a wrongful dismissal claim, the Employment Tribunal had only considered whether dismissal was within the range of reasonable responses and did not make a specific finding of gross misconduct. Had there been a wrongful dismissal claim before the Tribunal, it would have had to consider whether there was, in fact, a repudiatory breach by the Claimant.

The case was sent back to the Employment Tribunal to determine whether the Respondent employer was entitled to terminate the contract without notice.

The case is interesting in as much as the point has not been previously considered. For Employment claim solicitors, and particularly those interested in employment law for employees, it is a reminder that the qualifying service remains an important element of unfair dismissal claims.