Tribunal sets out employee's unfair dismissal rights in length of service dispute

Under the UK's Employment Rights Act (ERA) an employee has a right to bring a claim for unfair dismissal if they have one year's service with the employer.  This is known as "ordinary" unfair dismissal. A dismissal may be automatically unfair under the ERA in certain circumstances, in which case, the employee can bring a claim if they do not have one year's service.

"Where an employee is dismissed while he or she is working out their notice, the date of the ending of their employment is brought forward from the date on which their notice would have expired to the date on which they were summarily dismissed, even if the effect of that is to leave the employee without the necessary period of continuous service to present a complaint of unfair dismissal", the EAT said in its ruling.

The EAT was ruling in a case between M-Choice UK Ltd and an employee. M-Choice dismissed the employee, giving her notice that, if run to full term, could have given her the one year length of service needed to justify an unfair dismissal claim. When she brought that claim in the notice period she was summarily dismissed.”

 An Employment Tribunal had previously ruled that she could include the notice period in order to claim for ordinary unfair dismissal. The EAT has now overturned that decision but allowed the employee to pursue her claim of unfair dismissal against M-Choice for the alleged act of summary dismissal itself.

"The issue for the tribunal when it comes to the merits of her claim will be what the principal reason for her summary dismissal was. If it is found to have been because she had presented a complaint of unfair dismissal, that will have meant that she did not have to have a period of continuous employment to present her claim, and it will no doubt result in a finding of unfair dismissal. On the other hand, if it is found that the principal reason for her summary dismissal was something else, then she needed one year's continuous employment to acquire the right not to be unfairly dismissed, which she would not have had", the EAT said in its ruling.

The employee raised her original claim during her notice period, relying on a provision of the ERA that permits an action to be raised prior to the date on which the employment is to end where the dismissal is with notice.

She subsequently amended her claim to include a claim that she had been summarily dismissed after receiving a letter from her employer terminating her employment with immediate effect. She contended that M-Choice summarily dismissed her because she had raised her original claim.

In its ruling the EAT said that the employee had raised one claim rather than two and that her employment had been terminated on 21 January 2011, meaning that she did not have the necessary period of qualifying service to bring a claim for ordinary unfair dismissal against M-Choice. She had started working for M-Choice on 1 February 2010.