For the purposes of an Unfair or Constructive dismissal claim, it is common knowledge that there is a minimum length of service requirement of 2 years. The question of how much notice counts towards the 2-year service is clarified in the recent case below.
Employees can usually include their statutory notice entitlement of 1 week under s86(1) ERA which would bring them up to 2 years’ service. This case shows that in the case of a gross misconduct dismissal an employee’s employment can be terminated before 2 years without statutory notice being taken into account.
Lancaster and Duke Ltd v Ms V Wileman: UKEAT/0256/17/LA
The Claimant had been dismissed two days before she would have reached 2 years. She claimed that under s97(2) ERA, statutory minimum notice would have deemed to have been taken which would have pushed her over 2 years and therefore allowed her to bring an unfair dismissal claim.
The tribunal decided that s86(6) preserved the right of parties to terminate without statutory notice where gross misconduct had occurred and in this situation the notice can’t be added on.
Is the dismissal for reason of gross misconduct?
The ET may need to make a finding on whether gross misconduct has occurred in order to establish whether the person needs to be provided with statutory 1 week notice.
If the dismissal is Gross Misconduct then the employee will not be entitled to statutory notice (known as ‘summary dismissal’).
What constitutes gross misconduct?
It’s best to discuss this with experts if you need to dismiss someone, especially when they reach their 2 years service or where they have protected characteristics – contact us for help.
An employment tribunal may decide that the behaviour did not constitute gross misconduct.
The conduct should be so severe that it destroys the relationship of trust and confidence between the employer and employee, so that the working relationship can’t possibly continue.
An employer will stand a much better chance of being able to defend their decision to dismiss for gross misconduct if it provides examples within a written policy (especially where it’s the employees first job, they might genuinely not know what gross misconduct is).
These might look like:
- Breach of health and safety
- Substance misuse
A series of minor misconduct issues won’t amount to gross misconduct. It can’t be a ‘final straw’ situation.
Another common misconception is that ‘summary dismissal’ needs to happen on the spot however this is incorrect in most circumstances and a fair process needs to happen which includes an investigation.
PILON/Garden leave – a solution?
If an employee has a long notice period, putting them on Garden Leave may seem like a solution but when someone is on Garden Leave, they are still employed and thus can accrue service.
An alternative would be to pay the employee in lieu of their notice period (PILON) which brings the employment to an end immediately.
Its preferable to have a clause in the contract to do this (there needs to be when the employment reaches 2 years) as PILON is a dismissal.
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