In M-Choice UK Ltd v Alders the Employment Appeals Tribunal (“EAT”) has held that where an employer gave notice of dismissal, then summarily dismissed during the notice period when the employee brought a claim of unfair dismissal, the effective date of termination (“EDT”) was the earlier date of summary dismissal. This had the effect that the employee would not have accrued one year’s continuous employment at the date of dismissal so as to be able to claim ‘ordinary’ unfair dismissal. However, the EAT indicated that a claim of automatic unfair dismissal for asserting a statutory right, based on the earlier dismissal date, would likely succeed.
Ms Alder was employed by MCUK Ltd from 1 February 2010. She was entitled to six months’ notice of dismissal, and on 26 July 2010 was sent a letter giving notice ‘as from 26 July 2010, ending the work relationship as per 1 February 2011 at the latest’. She presented a claim of unfair dismissal on 11 January 2011, relying on the Employment Rights Act 1996 (“ERA”), which allows a claim of unfair dismissal to be presented after notice has been given but before the EDT. On 21 January, MCUK Ltd wrote to her stating that she was no longer required to be on garden leave and summarily dismissing her. She accordingly amended her claim to add a second complaint of unfair dismissal, asserting that the reason for the summary dismissal was that she had presented a complaint of unfair dismissal, rendering the summary dismissal automatically unfair.
At a pre-hearing review, an employment judge had to consider whether Ms Alder had sufficient continuous service to bring her claim, since the ERA provides that the right to claim unfair dismissal only applies where the employee has accrued one year’s continuous service at the EDT. The judge decided that the legislation provided that, in the case of an unfair dismissal claim brought before notice has expired, references in the ERA to the EDT include references to the date that would be the EDT on expiry of the notice. The judge therefore treated 1 February as the EDT and allowed the claim of ‘ordinary’ unfair dismissal to proceed. MCUK Ltd appealed.
The EAT allowed the appeal. It treated Ms Alder as having brought a single claim of unfair dismissal, relying on 1 February or 21 January as alternative dates for the EDT. It noted that the employment judge had not considered the effect of MCUK Ltd’s letter of 21 January. Ms Alder argued, in essence, that the letter did not affect the EDT of 1 February, regardless of what happened in the notice period. The EAT rejected that approach. The EAT therefore had to decide the EDT for itself, taking account of the summary dismissal. The EAT referred to the ‘clear and unambiguous’ statement of the law in Stapp v The Shaftesbury Society, to the effect that the summary dismissal of an employee who is under notice brings forward the EDT, even if that leaves him or her with insufficient continuous service to claim unfair dismissal. The EAT therefore concluded that Ms Alder was summarily dismissed on 21 January 2011, meaning that she could not claim ‘ordinary’ unfair dismissal.
The EAT concluded by noting that the issue for the tribunal when it comes to the merits of the automatic unfair dismissal claim will be the principal reason for dismissal. If the tribunal finds it to be that Ms Alder had presented a complaint of unfair dismissal, it would mean that she did not have to establish a period of continuous employment to present her claim, and would no doubt result in a finding of unfair dismissal.
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