Unfair dismissal and gross misconduct – how long should you be employed for to claim?

The EAT has upheld the employer’s appeal in a case involving an employee dismissed for gross misconduct with less than two years’ service.

Under section 97(2) of the Employment Rights Act 1996 (the ERA), where an employer dismisses an employee with less than the statutory minimum period of notice required by section 86 of the ERA, the effective date of termination is deemed to be the date on which the statutory notice would have expired. Effectively, you add on the statutory notice to calculate the employee’s length of service in order to determine whether they have at least two years’ service, being the current minimum length of service for a claim of general unfair dismissal.

The employee was dismissed two days short of the necessary two years’ qualifying service to bring a claim of unfair dismissal. She claimed unfair dismissal arguing that her length of service should be extended by the statutory minimum notice of one week which would mean that she then had the necessary two years’ service to pursue her claim.

The employer argued that her right to statutory notice was displaced because of the employee’s alleged gross misconduct and so they were allowed to dismiss without statutory notice being added and accordingly, her claim of unfair dismissal should not be allowed to proceed.

The Employment Appeal Tribunal (EAT) agreed with the employer finally clarifying the position, which although assumed in previous EAT authorities had never been definitively determined.

Good news for employers if they do find themselves in similar situations close to an employee’s two year anniversary. Although we would always advise that, wherever possible, it is best to deal with an employee’s dismissal a distance away from their two year anniversary.