Bad reference

A union member has just been dismissed without notice for gross misconduct. She was two weeks short of a full year's service so does not have the year's continuous service she would need to claim unfair dismissal. She was entitled to a month's notice, so if she had been given notice she would have been able to bring a claim. Is there anything she can do?

When an employee has been dismissed without notice and the dismissal was unfair, the date of termination of employment is extended to the end of the statutory notice period (section 97, Employment Rights Act 1996). However, the same principle does not apply to contractual notice.

Adding on her statutory notice of one week would still leave this member a week short of the qualifying period for unfair dismissal. Unfortunately, therefore, she is left without a remedy for unfair dismissal, unless you suspect that the real reason for her dismissal was one of the automatically unfair reasons for which there is no qualifying period of employment.

However, she may still be able to claim that her dismissal was in breach of contract. This would be a wrongful dismissal claim, entitling her to recover her notice pay (although she would have to show that she had mitigated her loss by looking for other work).

* More information: Harper v Virgin Net Ltd [2004] IRLR 391; LRD booklet, Dismissal - a legal guide