Employment Law Speed Read – 16/07/18
16th July, 2018
This week we look at a case where an employee was let go just short of qualifying for unfair dismissal.
Lancaster & Duke v Wileman
In Lancaster & Duke v Wileman the Employment Appeal Tribunal (EAT) considered whether an employee, dismissed for gross misconduct just short of qualifying for unfair dismissal, could claim the statutory week’s notice to take them over the two years’ service required to bring a claim of unfair dismissal.
Ms Wileman had been employed by Lancaster & Duke (L&D) since 22 September 2014. She was summarily dismissed for gross misconduct on 20 September 2016, two days short of the second anniversary of her employment.
L&D did not follow any sort of procedure prior to making the decision to dismiss Ms Wileman, nor was she afforded any right to appeal. Ms Wileman also lodged a grievance on the evening of her dismissal but no grievance hearing took place.
Ms Wileman claimed unfair dismissal and argued before the Employment Tribunal (ET) that adding the statutory minimum notice period of a week would take her over the two years minimum service required to bring such a claim.
The ET agreed and held that the statutory minimum notice period of a week was not displaced by the employer’s right to dismiss summarily due to an employee’s conduct. The ET made no finding as to whether Ms Wileman’s conduct for which she was summarily dismissed could be said to have constituted gross misconduct.
Employment Appeal Tribunal
The EAT disagreed with the ET, holding that the statutory minimum notice period of a week was subject to the employer’s right to dismiss without notice in events of an employee’s gross misconduct, and so Ms Wileman was not eligible to bring a claim of unfair dismissal.
The EAT remitted the case back to the ET to consider whether Ms Wileman had in fact committed gross misconduct.
This case demonstrates that where dismissal is being contemplated in the week before the two year qualifying period is reached, employers are able to get around the statutory minimum notice period of a week provided there has been a sufficiently serious act of misconduct by the employee.
As a minimum, employers should follow some form of process in which the alleged serious misconduct is documented in order to evidence the reason for dismissal without notice. In the absence of a sufficiently serious act of misconduct, dismissal in the week before the two year qualifying period is triggered either with or without a payment in lieu of notice will take the employee over the two year threshold.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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