In the case of Lancaster and Duke Limited v Wileman, the Employment Appeal Tribunal (EAT) considered whether the effective date of termination (EDT) should be extended by the statutory minimum notice period for the purpose of calculating an employee’s length of continuous service, where an employer is entitled to dismiss summarily by reason of the employee’s conduct. The EAT concluded that the extension to the EDT by the statutory minimum notice period does not apply in these circumstances.
In this case, the Claimant, Ms Wileman, began her employment with the Respondent on 22 September 2014. On 20 September 2016, the Respondent dismissed Ms Wileman summarily for gross misconduct. Ms Wileman presented a claim of unfair dismissal and the Employment Tribunal were tasked with deciding, as a preliminary issue, whether she had accrued the necessary continuity of employment i.e. 2 years, to bring a claim for unfair dismissal.
The relevant legislation provides that where an employer dismisses an employee with less than the statutory minimum notice period, the EDT is extended and is deemed to be the date on which the statutory notice would have expired. In this case, the Employment Tribunal decided that the EDT was 20 September 2016 and, extending this by Ms Wileman’s entitlement to 1 week’s statutory notice, her notice period would have expired on 27 September 2016, meaning that she would have accrued over 2 years’ continuity of employment and was therefore entitled to bring a claim of unfair dismissal in the Employment Tribunal.
The EAT disagreed. It alluded to cases where the point had been addressed previously. In the EAT’s view, there is no extension in cases of gross misconduct. The EAT noted however that in this case, the Employment Tribunal had not specifically made a finding as to whether or not Ms Wileman was guilty of gross misconduct. It was therefore not possible to apply the legal principle that the EDT would not be extended by the statutory minimum notice period in cases of gross misconduct. The issue was therefore remitted to the Tribunal to make a finding on this point.