Pay in lieu of notice

Q: One of our members was dismissed with one month's salary in lieu of notice. She had been employed for just a few days over 11 months - so if she had been able to work that notice, she would have had a year's service and been able to claim unfair dismissal. She also has not yet had her appeal. As her notice - and the appeal - would take her over her anniversary, will she be able to bring a claim?

A: If an employee is unfairly dismissed and is not given his/her statutory minimum notice, the termination date is extended to the end of that notice period under section 97(2) of the Employment Rights Act 1996. But this applies only to the statutory notice of one week and not to contractual notice, as was confirmed in the recent case of Harper v Virgin Net Ltd [2004] EWCA Civ 271.

Therefore, your member will be unable to pursue an unfair dismissal claim unless she was dismissed for one of the "automatically unfair" reasons for which there is no service qualification.

Her right of appeal does not affect the dismissal date unless she is reinstated. If she is reinstated, the dismissal "vanishes" (in which case there will be no unfair dismissal claim anyway); if not, the original date stands.