ET ruling on summary dismissal within first year of employment

An employee was employed from 1 February 2010, but in July 2010 her employer gave her notice of dismissal, to expire on 1 February 2011.  The employee made an unfair dismissal claim on 11 January 2011 and 10 days later the employer then sent a letter to dismiss her with immediate effect – just before her previous dismissal date and less than a year from her start date.

Normally employee needs to have at least one year’s service before presenting a claim to an employment tribunal.  The issue raised by this case is whether the employer had effectively terminated employment on 21 January 2011, before she had accrued a year’s service, or whether her employment ended on the expiry of the original notice period.

The EAT concluded that, where an employee is dismissed during the notice period, the date of termination is brought forward to the date of the summary dismissal, even if it has the effect of depriving that employee of the length of service required to present a claim of unfair dismissal. The claim for ordinary unfair dismissal could not proceed.

However, there is a category of “day one” unfair dismissal claims which can be brought bring without a year’s service.  These include, for example, dismissal for a pregnancy-related reason, dismissal for whistleblowing, dismissal for a health and safety related reason, and importantly dismissal for asserting a statutory right.

The case will therefore return to the tribunal on these grounds.  If the Tribunal concludes that the employer’s principal reason for the summary dismissal was because the employee had made an unfair dismissal complaint, it will be held to be automatically unfair.