Can an employee, dismissed for gross misconduct just short of qualifying for unfair dismissal, add the week's statutory notice under s86(1) ERA to obtain the right to claim unfair dismissal?
No. An Employment Appeal Tribunal upheld the employers appeal in Lancaster & Duke v Wileman.
Dismissed just before 2 years
Ms Wileman, the Claimant, had been dismissed two days before her two-year work anniversary. She claimed unfair dismissal as, under s97(2) of the Employment Rights Act, adding statutory minimum notice of one week would have taken her 'over the line'.
The Respondent, Lancaster & Duke, argued that s97(2) of the Employment Rights Act allowed it to dismiss without statutory notice being added, because of the Claimant's (alleged) gross misconduct.
Calculating service for unfair dismissal purposes
The tribunal got it wrong by concluding that s97(2) of the Employment Rights Act, a 'deeming provision', meant that statutory notice had to be deemed included in calculating service for unfair dismissal purposes.
Applying s86 of the Employment Rights Act entirely, s86(6) preserved the right of parties to terminate without notice, which includes without statutory notice.
Entitled to dismiss without notice
If the employer had been entitled to dismiss without notice, no statutory notice could be added to deemed service.
Paul Burton, Head of Frettens' Employment Team, concludes “With no wrongful dismissal case brought, the tribunal had made no finding about whether the employee had actually committed gross misconduct or not. The case was therefore remitted for further findings.”
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