Unfair dismissal claims: When do statutory notice periods need to be added to qualifying service?

‘Lancaster and Duke Ltd v Wileman’

Unfair dismissal claims can only be brought if an employee has worked for a qualifying period of two years. The effective date of termination (EDT) is crucial in calculating whether an employee has sufficient qualifying service.

When an employee is dismissed without notice (known as a summary dismissal), the EDT will be the date that actual dismissal took place. However, when an employee is close to the two-year milestone, calculating whether or not they have sufficient qualifying service can be complex.

If an employee is dismissed without notice, the EDT will be the actual date of dismissal plus the minimum statutory notice period (1 week for service of less than two years). If this then extends the employee’s service to two years, the employee is entitled to bring an unfair dismissal claim.

However, in the case of ‘Lancaster and Duke Ltd v Wileman’, the Tribunal held that the EDT extension as described above does not apply if an employee is dismissed for gross misconduct.

Our opinion

An employee dismissed for gross misconduct in this situation would need to establish that the employer acted unfairly in the dismissal and also that they themselves had not committed gross misconduct.
Whilst this provides relief for employers concerned about dismissing employees close to the two-year qualifying period, we still strongly recommend seeking legal advice if you are considering dismissing an employee, especially if around the two-year mark.