Friday 10 March 2006

What is 'contemplating dismissal'?

The EAT has handed down a decision dealing with the transitional provisions for the Employment Act 2002.

The statutory dismissal procedure (with impact on automatic unfairness, compensation adjustments and, as in this case, potential extensions of time for presenting a claim) applies to dismissals after 1st October 2004, unless the employer 'first contemplates dismissing...the employee' before 1st October 2004.

The employer had investigated an allegation of misconduct, with the investigation concluding on 24th September 2004. On 25th October, the Claimant was told he was facing a gross misconduct charge with potential dismissal at the end.

The EAT (HHJ Peter Clark) upheld the employment tribunal's decision that the employer had plainly contemplated dismissing the employee prior to 1st October 2004, even though it had not told the employee that it was contemplating dismissal. The threshold for establishing that the employer was contemplating dismissal was a low one. This meant that the statutory procedures did not apply, and the Claiman was not entitled to an extension of time to present his claim; thus his unfair dismissal claim failed.

Madhewoo v NHS Direct

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