Statutory notice and continuity of employment

10 September 2018

Normally, an employer must give notice to terminate a contract of employment. But what happens when an employee is dismissed without notice for gross misconduct?

Section 97(2) of the Employment Rights Act 1996 allows an employee dismissed without notice to add their statutory notice onto their continuous employment. If an employee is dismissed without notice for gross misconduct, can they add on their statutory period of notice to extend their effective date of termination?

Ms Wileman was dismissed for gross misconduct from Lancaster & Duke two days before the two-year anniversary of her employment. The employer did not follow any sort of process and her complaints went unanswered. The employee brought a claim for unfair dismissal despite not having two years' continuous employment. She claimed she could add on her statutory notice period to extend her termination date. The employment tribunal allowed this. She went on to win her unfair dismissal claim.

The Employment Appeal Tribunal disagreed. The tribunal had failed to consider another section of the same Act, section 86(6). This section allows an employer to dismiss without notice for conduct reasons. This would apply in gross misconduct cases. If the employer was entitled to dismiss without notice, then the employee could not add on the statutory notice to change her termination date.

The EAT sent the case back to the tribunal to decide whether the employee was guilty of gross misconduct. If she was guilty of gross misconduct, then her original termination date must stand. She would not have the necessary 2 years' service to bring an unfair dismissal claim. If she wasn't, then she can add on the extra week's notice and she will have enough continuous service to bring an unfair dismissal claim. This case is a reminder to employers to take care with dismissals very close to the two-year qualifying period. Without gross misconduct, two years might well be 1 year and 51 weeks.

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