The Qualifying Period for Unfair Dismissal Claims

26th September 2018

The Employment Appeal Tribunal (EAT) has recently held in the case of Lancaster & Duke Limited v Wileman that, where an employer has a genuine reason to summarily dismiss an employee, the employee cannot rely on the “deeming provisions” in the Employment Rights Act 1996 (the Act) to get two years’ qualifying service for the purpose of bringing a claim of unfair dismissal.


To bring a claim for unfair dismissal, an employee must have at least two years’ service. This can be frustrating for employees that are dismissed just before their two year work anniversary and are of the view that their dismissal was unfair.

In certain circumstances, the Act allows an employee dismissed with no notice or less than the statutory minimum notice to ‘artificially’ extend the effective date of termination (EDT) to the date on which the proper statutory notice would have expired (also known as the “deeming provisions”). This benefits an employee who is dismissed in the week leading up to their two year anniversary.

The EAT have recently held that, where there is a genuine entitlement to summarily dismiss an employee, he/she cannot rely on the deeming provisions to reach the two year threshold.

The Facts

Ms W worked as a recruitment manager in an employment agency. She was summarily dismissed for gross misconduct just two days before attaining two years’ service.

Ms W brought a claim for unfair dismissal against her employer. The preliminary consideration for the Employment Tribunal was whether Ms W had the required length of service in order to bring a claim for unfair dismissal. The company argued that she did not, but Ms W argued that adding the statutory minimum notice period, effectively got her over the line. The Tribunal agreed with Ms W and upheld her unfair dismissal claim.

The employer appealed and the EAT allowed the appeal on the basis that under s 86(6) of the Act either party has a right to treat a contract as terminable without notice by reason of conduct of the other party. So, in a situation where an employer has dismissed an employee for gross misconduct, in circumstances where it is entitled to do so, the employee is not entitled to any statutory notice and cannot, therefore, extend the EDT by the statutory notice period.

This case has been sent back to the Tribunal to make a finding of fact as to whether Ms W had been guilty of gross misconduct which would entitle her employer to terminate the contract of employment without notice.

How does this impact on schools?

Schools can be somewhat reassured that an employee cannot extend the EDT in a situation where the school is entitled to dismiss them for gross misconduct.

That said, schools should tread carefully when making a decision to summarily dismiss an employee. They should not attempt to circumvent the rules by labelling a dismissal as “gross misconduct” in a bid to defeat a claim of unfair dismissal in circumstances where the individual is close to reaching two years’ service. Equally, where the “gross misconduct” is borderline, school should ensure that any dismissal takes place well in advance of the employee attaining two years’ service.

For specific advice or queries, please contact Hannah Wilding on 01242 246485 or [email protected].

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