New ruling gives guidance on notice period rights in cases of gross misconduct

A recent ruling by the Employment Appeal Tribunal (EAT) has ruled that an employee can be dismissed without their statutory minimum notice period if the employer is entitled to by means of gross misconduct.

The decision is significant because, although this had been assumed in previous EAT authorities, the point had never been definitively determined. This now gives employers certainty in such instances, according to Simon Thomas, employment partner at Neath and SA1 based law firm, Hutchinson Thomas.

The ruling is particularly significant in cases where, had a statutory minimum notice period been added, an employee would have served more than two years with an employer, thus giving them the right to bring a claim for unfair dismissal.

The decision was based on the case of Lancaster and Duke Ltd v Wileman. The case arose from a dismissal conducted on 20th September 2016, of Ms. V Wileman, by her employer Lancaster and Duke Ltd – a recruitment consultancy company operating in the construction sector. Wileman had been working there for almost two years before this point, having started on 22nd September 2014.

The reasoning behind her dismissal due to gross misconduct was a combination of factors, including: her ‘abrasive’ work ethic, arguments with the directors of the company, and her advisory comment to a co-worker to seek new employment as she was not enjoying her work.

Ms Wileman presented a claim of unfair dismissal at an employment tribunal (ET) arguing that the statutory minimum notice period should extend her termination date by one week, which would give her the two years’ service she needed to bring the claim. The ET agreed with her that it should, allowing her claim for unfair dismissal to proceed.

However, Lancaster and Duke argued section 86(6) of the Employment Rights Act 1996, which states that the right to statutory minimum notice ‘does not affect any right of either party to a contract of employment to treat the contract as terminable without notice by reason of the conduct of the other party’. Essentially, in the case of gross misconduct there can be no extension of the minimum statutory notice period.

Now, the EAT has agreed with Lancaster and Duke’s line of reasoning. Consequently, presiding Judge Eady concluded by allowing the appeal and remitting the case for the ET.

Simon Thomas explains the significant of the case.

“One issue that frequently arises in unfair dismissal cases is whether an employee has the necessary two years qualifying service which then gives jurisdiction for an employment tribunal to hear a claim. This judgment puts the matter beyond argument and is helpful to employers. However, it is important in such circumstances that employers take advice before dismissing an employee to ensure that they avoid procedural failings which might put them in jeopardy”

For expert legal advice on employment law – contact Simon on 01639 640164 or email: