Summary Dismissal Trumps Notice Period

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

The EAT (Keith J) has handed down Judgment in the case of M-Choice UK Ltd v Alders, which is authority for the proposition that where an employee is dismissed with notice expiring after a year's service, but is then summarily dismissed before a year's service, the employee's right to claim 'ordinary' Unfair Dismissal is extinguished as the second dismissal displaces the first.

The Claimant was given 12 months' notice after 3 months' service. Whilst working her notice, she claimed Unfair Dismissal, and the employer then summarily dismissed her before she reached one year. The Claimant then brought a second claim of automatic unfair dismissal for asserting the statutory right not to be unfairly dismissed. The question at a PHR was whether the second dismissal deprived the Claimant of the right to claim 'ordinary' Unfair Dismissal. The Employment Tribunal said that it did not.

The EAT disagreed, applying Stapp v The Shaftesbury Society [1982] IRLR 326, holding that the Claimant's summary dismissal meant that she had never acquired the one year’s service needed to claim Unfair Dismissal.

The EAT observed that there was one claim of Unfair Dismissal put alternately, and that there could only be one effective date of termination.

The complaint of automatic unfair dismissal remains to be determined.