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Motor Trade Legal News

Unfair Dismissal: Qualifying Period

It has long been established that an employee needs 2 years’ service to claim normal unfair dismissal under the Employment rights Act 1996.

That protection in fact applies a statutory week below the 2 years in most cases because the Courts have held that in effect the statutory minimum notice of termination should be taken off the 2-year qualification requirement.

In a recent case Lancaster and Duke v Wileman the Employment Appeal Tribunal has confirmed that this reduction of the 2-year period by the statutory notice does not apply when an employee is dismissed for gross misconduct just short of the qualifying period for unfair dismissal.

Facts

In this case the Claimant had been dismissed 2 days before her 2-year anniversary. She claimed unfair dismissal by applying the above rule that the statutory minimum notice of 1 week would have taken her “over the line” of the 2-year rule.

The Respondent employer argued that by virtue of Section 86(6) of the Employment Rights Act 1996 the employer was still entitled to dismiss without the statutory notice being added where the Claimant employee was guilty of (alleged) gross misconduct.

The EAT has reconfirmed in a case to be welcomed by employers that if the Respondent had been entitled to dismiss without notice (i.e. for gross misconduct) then no statutory notice could be added and therefore the employee could not claim normal unfair dismissal.

The case was remitted back to the Tribunal to consider whether in fact the employee had committed an act of gross misconduct. If they had then there would be no unfair dismissal, if they hadn’t then the statutory one week reduction would apply so the Claimant would be able to claim unfair dismissal.

Employers in the motor industry are advised to take particular care where dismissals are approaching the 2-year rule and you can seek advice from the RMIF legal helpline in such situations.