Length of service

Q. A colleague was one week short of a year’s service. They’d had excellent feedback and been performing well, but were dismissed after a manager made spurious allegations of gross misconduct against them. Does the employee have any claim?

A. Under section 97(2) of the Employment Rights Act 1996, the effective date of termination can be extended by a week to include the employee’s statutory notice period. With the additional week they, therefore, would ordinarily acquire a notional year’s service entitling them to claim unfair dismissal.

However, where someone is dismissed for gross misconduct, no notice need be given and so the employee’s service would normally not extend.

According to the case of Lanton Leisure v White and Gibson [1987] IRLR 119, this isn’t necessarily the end of the matter. That case states that a tribunal should conduct an enquiry into the merits of the claim in order to determine whether there genuinely were factors sufficient to justify the individual having their employment terminated without notice.

The employee may also have a claim for wrongful dismissal, although again, a claim can only be successfully brought if they can show that they shouldn’t have been summarily dismissed.