Can an employee, dismissed for gross misconduct just short of qualifying for unfair dismissal, add the week's statutory notice under s86(1) ERA to obtain the right to claim unfair dismissal?
No, held the EAT in Lancaster & Duke v Wileman, upholding the employer's appeal.
The Claimant had been dismissed two days before her two-year work anniversary. She claimed unfair dismissal as, under s97(2) ERA, adding statutory minimum notice of one week would have taken her 'over the line'. The Respondent argued that s86(6) ERA allowed it to dismiss without statutory notice being added, because of the Claimant's (alleged) gross misconduct.
The tribunal erred by concluding that s97(2) ERA, a 'deeming provision', meant that statutory notice had to be deemed included in calculating service for unfair dismissal purposes. Applying s86 ERA entirely, s86(6) preserved the right of parties to terminate without notice, which includes without statutory notice. If the Respondent had been entitled to dismiss without notice, no statutory notice could be added to deemed service.
With no wrongful dismissal case brought, the tribunal had made no finding about whether the employee had committed gross misconduct, so the case was remitted for further findings.
Thanks to Ed McFarlane of Deminos HR for preparing this case summary.