It is generally well known that a Claimant looking to bring a claim for unfair dismissal can add the statutory week’s notice period to their period of continuous employment, to get them ‘over the line’ in relation to the 2-year qualifying period.
So: an employee with 1 year and 51 weeks’ service who is sacked by an employer who gives no notice of dismissal can add the statutory week and will then qualify with the requisite 2 years’ service.
The question has now arisen in a recent case, what if the employer dismisses for gross misconduct? In other words, if summary dismissal (i.e. dismissal without notice) was warranted, can the employee still add the extra week?
No, said the Employment Appeal Tribunal in Lancaster and Duke v Wileman.
The Employment Tribunal originally had said that it was always possible to add on the extra week.
But the EAT pointed out that under the Employment Rights Act 1996 the employer’s right was preserved, to terminate a contract without notice at all (in appropriate circumstances – e.g. gross misconduct) and the Act had to be read as a whole. In a summary dismissal case, the extra statutory week could not be added, and the Claimant lost.
So be aware: in cases involving gross misconduct the Claimant cannot necessarily add the extra week, to get to the 2-year qualifying service point.