In Lancaster and Duke Ltd v Wileman, the EAT held that where an employee is summarily dismissed for gross misconduct, the employee’s statutory notice entitlement should not be added for the purpose of calculating an employee’s length of continuous service.

The Claimant started her employment with the Respondent as a recruitment consultant on 22nd September 2014. She was summarily dismissed for gross misconduct on 20th September 2016, and was therefore 2 days short of the necessary two years’ qualifying service to allow her to bring an unfair dismissal claim.

Under section 97(2) of the Employment Rights Act 1996, if an employer dismisses an employee with less than the statutory minimum period of notice required, the effective date of termination (EDT) is deemed to be the date on which the statutory notice would have expired had it been provided.

Here, the Claimant argued that she was entitled to one week’s statutory notice, meaning that her EDT would have been the 27th September 2016. The Claimant therefore brought a claim of unfair dismissal on this basis.

The Respondent argued that the Claimant did not have two years’ continuous employment as section 86(6) of the Employment Rights Act provides that an employee is not entitled to statutory notice if the employer has a right to terminate the contract of employment without notice as a result of the employee’s conduct (i.e. they committed gross misconduct).

The Tribunal held that the Claimant had the required two years’ service.

However, on appeal the EAT upheld the Respondent’s case that the Claimant did not have the necessary two years’ continuous employment to bring a claim for unfair dismissal if guilty of gross misconduct. It found that that if the Respondent had been entitled to dismiss without notice, no statutory notice could be added to extend service beyond the 2 years.

This case raises the question as to whether and employer could artificially inflate an allegation to gross misconduct in order to prevent the employee obtaining 2 years’ service. That seems unlikely, however, with the EAT remitting this case to the original Tribunal to make findings on whether the misconduct in question could truly be said to be gross.

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