Two days made all the difference in employer's right to dismiss

Timing can be crucial when deciding to dismiss an employee, as shown in a recent case before the Employment Appeal Tribunal (EAT).

The case involved an office manager who was dismissed for gross misconduct on 20 September 2016. There was no investigation, no hearing and no appeal.

The alleged misconduct related to her knowledge that a colleague was planning to leave the business, and the employer's view that she was rude and difficult to work with.

The employee's length of service was two days short of the necessary two years needed to bring a claim of unfair dismissal.

She brought her case to the Employment Tribunal, which ruled that her effective date of termination was not the day she was dismissed but the date on which her notice period would have expired a week later. This meant she would be able to bring a claim.

The EAT overturned the decision. It held that although the law provided for the effective date of termination to be at the end of the statutory minimum notice period, that was subject to the employer's right not to give notice.

In cases like this involving gross misconduct, where the employer could lawfully dismiss without notice, there was no statutory minimum notice period, and therefore no extension to the effective date of termination.

However, the tribunal had not made a finding as to whether the employee was guilty of gross misconduct such that the employer would have been entitled to terminate the contract without notice. That question was therefore remitted to the tribunal for it to determine the misconduct issue.

Please contact us if you would like more information about the issues raised in this article or any aspect of employment law.

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