The law says that anyone employed for more than a month but less than two years is entitled to a week’s notice, thus extending their date of termination. In Lancaster & Duke Ltd v Wileman, the Employment Appeal Tribunal (EAT) held that an employee dismissed for gross misconduct was not entitled to claim a week’s notice with the result that she was not able to claim unfair dismissal.
Basic facts
Ms Wileman was one of three employees working for a small recruitment agency operated by two directors. Although she was a productive worker, she clashed repeatedly with one of the directors, Mr Weaver. There was a heated exchange between them at the end of August 2016 during which Ms Wileman said she was looking for another job.
In the meantime, however, another employee, Ms Thomas, resigned. On handing in her notice, she said that she had had a conversation with Ms Wileman about her (Ms Thomas’) future at the company. This led to a decision by the directors to summarily dismiss Ms Wileman for gross misconduct two days before she had completed two years at the company.
Ms Wileman claimed unfair dismissal, arguing that if she had been given the statutory minimum notice of one week to which she was entitled under section 86(1) of the Employment Rights Act, she would have reached the two-year threshold required for claiming unfair dismissal by virtue of section 97(2). The company, however, argued that section 86(1) was displaced by section 86(6).
Relevant law
Section 86(1) states that anyone employed for more than a month but less than two years is entitled to a week’s notice.
Section 86(6) states that either party can terminate the contract without notice “by reason of conduct of the other party”.
Section 97(2) states that if the employer terminates the contract without giving the notice required under section 86, then the effective date of termination is extended by that notice period.
Tribunal decision
The tribunal agreed with Ms Wileman, holding that her right to a week’s notice under section 86(1) was not affected by section 86(6). As a result her effective date of termination (EDT) was extended by a week to 27 September 2016, meaning that her claim of unfair dismissal could proceed.
EAT decision
The EAT allowed the employer’s appeal holding that it was a matter of statutory construction that could be “straightforwardly answered” by section 97(2).
By referring back to “the notice required by section 86”, the EAT held that section 97(2) applied to the whole of section 86, including subsection 6. As it pointed out, had Parliament wanted to avoid incorporating section 86(6) into the definition of the EDT, it could simply have ensured that the reference was to “the notice required by section 86(1)” as opposed to section 86, but it did not do that.
As such, if an employer summarily dismisses an employee for, say, gross misconduct, then the employee cannot rely on section 86(1) to extend their EDT. As the tribunal had not decided whether her conduct constituted gross misconduct, the EAT remitted the case to decide whether the company was entitled to terminate her contract without notice.