When is a dismissal unfair and what is the qualifying period?

Justyna Cowman, HR Assistant at Aspire Business Partnership blogs about the fairness of employee dismissals, qualifying period and recent case law relating to effects of gross misconduct on statutory minimum notice.

What is unfair dismissal?

A dismissal is considered unfair when the employer terminates a contract of employment with no fair reason to do so or if the process of dismissal has not been handled fairly or consistently.

Dismissals can be classed automatically unfair if the reason for dismissal is:

• pregnancy, including all reasons relating to maternity
• family, including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants
• acting as an employee representative
• acting as a trade union representative
• acting as an occupational pension scheme trustee
• joining or not joining a trade union
• being a part-time or fixed-term employee
• pay and working hours, including the Working Time Regulations, annual leave and the National Minimum Wage
• whistleblowing

When dismissing, employers should consider whether the termination is in any way linked to protected characteristics, as this will also mean the dismissal is automatically unfair. Protected characteristics under the Equality Act 2010 are:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion and belief
• Sex
• Sexual orientation

A list of dismissals that are deemed automatically unfair can be found in the Employment Act 1996.

When is it fair to dismiss?

If an employer is able to demonstrate that the dismissal was:

• relating to an employee's conduct or capability
• due to redundancy
• because a statutory duty or restriction (such as expiry of a visa) prohibited the employment being continued
• or another significant reason which justifies the dismissal.

Qualifying period

Normally employees need to qualify to put forward a complaint to an employment tribunal.

 The criteria is:

• at least one year's continuous service for employees who commenced their employment before 6th April 2012
• two years for employees who started their employment on or after 6th April 2012.

However, there is no length of service requirement for automatically unfair dismissals.

Case law: Effect of gross misconduct on statutory minimum notice

In Lancaster & Duke Ltd v Wileman, the Employment Appeal Tribunal (EAT) held that Wileman could not extend her length of service by the statutory minimum notice period to enable her to complete her 2 year service period qualifying her to bring a claim for unfair dismissal.

Ms Wileman commenced her employment with Lancaster & Duke Ltd on 22 September 2014. She was classified as a productive employee, however, deemed by colleagues as “rude and demanding”. This lead on one occasion to a heated exchange of words with one of the directors. Further comments by colleagues related to Ms Wileman’s behaviour followed and on 20 September 2016, she was dismissed for gross misconduct.

The employer has not given her the right to appeal and Ms Wileman brought a claim for unfair dismissal.

The ET initially ruled that the employee’s length of service fell 2 days short of 2 years, however, her statutory minimum notice of one week should be included when calculating the qualifying period. The ET did not agree with the employer that Ms Wileman committed an act of gross misconduct and the decision fell outside of the range of reasonable responses.

The employer appealed to the EAT. It was ruled that according to section 97(2) of the Employment Rights Act 1996 “where the contract of employment is terminated by the employer” and “the notice required by section 86 to be given by an employer would, if duly given on the material date, expire on a date later than the effective date of termination; the later date is the effective date of termination”.

The notice required by section 86 states that “to treat the contract as terminable without notice by reason of the conduct of the other party”. Which means that where an employee committed a serious breach in a contractual relationship, the employer has the right to give no notice.

The EAT allowed the appeal, although the case of whether or not it was in fact gross misconduct, was remitted back to the tribunal to asses.

Aspire comment

Employers need to be mindful that even though an employee has less than 2 years’ service, termination of employment is not a risk-free exercise. It is important that appropriate, fair and consistent disciplinary and grievance procedures are followed to ensure a business is not exposed to Employment Tribunal claims. In some cases, dismissals are straightforward, but others often require long-term exit strategies.