The EAT has held that in the case of an employee who was initially dismissed with notice but subsequently summarily dismissed without notice, the effective date of termination was the date of the summary dismissal.
In M-Choice UK Limited v Alders Ms Alders was given 12 months notice to terminate her employment after only 3 months with the company. Had her notice period been allowed to run she would have had 16 months service at the date of termination. Ms Alders claimed unfair dismissal. Her employer then summarily dismissed her before she reached one year’s service. Ms Alders then brought a second unfair dismissal claim arguing that she had been automatically unfair dismissed for asserting her statutory right not to be unfairly dismissed. The question for the Tribunal was whether the summary dismissal was effective to deprive her of the ability to claim ordinary unfair dismissal. The Tribunal said it was not and that Ms Alders could bring her claim.
The company appealed to the EAT which held that the summary dismissal brought her employment to an end and therefore the employee was unable to claim ordinary unfair dismissal. However, it suggested that if the reason the company had dismissed was because she had claimed unfair dismissal she would not need any qualifying service and this would be an automatically unfair dismissal. The case is yet to be decided so watch this space.
Practical Tip:This case highlights that employers should not assume that if an employee has under a year’s service they can safely dismiss. This will not always be the case. As with any dismissal it is advisable to seek expert advice.