The case of M-Choice UK Limited -v- Aalders, which was recently considered by the Employment Appeal Tribunal, demonstrates the complexities which can arise when trying to establish when someone was dismissed. The date of termination can be vital in determining whether or not a claim of unfar dismissal can be maintained.
Ms Aalders commenced employment with M-Choice on 1 February 2010. She was entitled to six months’ notice of termination of employment. On 26 July 2010 she was sent a letter which purported to give notice of termination, stating “as from 26 July 2010, ending the work relationship as per (sic) 1 February 2011 at the latest”.
Section 111(3) of the Employment Rights Act 1996 provides that an employee can present a complaint of unfair dismissal after notice has been given but before the effective date of termination of employment. Ms Aalders duly did so on 11 January 2011. By letter dated 21 January 2011 M-Choice informed Ms Aalders that she was no longer required to remain on garden leave and that she was dismissed. As a result, Ms Aalders amending her (existing) complaint of unfair dismissal by adding a further complaint of unfair dismissal on the basis that the reason for her summary dismissal was that she had presented a complaint of unfair dismissal. Presenting a complaint of unfair dismissal is a statutory right so that if this was indeed the reason for her summary dismissal then that dismissal would have been automatically unfair.
A further complication is that an employee can only bring a complaint of unfair dismissal when he or she has completed one year’s continuous service with the employer. However, section 111(4) of the 1996 Act provides that if an unfair dismissal claim is brought before the expiry of the notice period, references to the effective date of termination of employment include references to the date of expiry of the notice, in this case 1 February 2011. This has the effect that if the latter date was used, Ms Aalders would have the necessary one year qualifying period. There was a pre-hearing review at which the employment judge took the view that 1 February 2011 could be taken as the effective date of termination so that the original complaint of unfair dismissal could proceed. The employer appealed to the Employment Appeal Tribunal and lost.
The Appeal Tribunal took the view that there was one complaint of unfair dismissal, relying on either 21 January or 1 February as the effective date of termination of employment. The EAT took the view that section 111(4) was intended to allow acceptance of what would otherwise be premature claims. It did not affect the effective date of termination for the purpose of establishing whether or not the employee had accrued the right not to be unfairly dismissed. However, if a tribunal found that bringing a claim for unfair dismissal was the main reason for dismissal then the one year time limit would not apply and that would be an automatically unfair dismissal.
And people say that legal representation should not be required in employment tribunals!