The facts of this case are fairly straightforward. Miss Aalders began her employment as Head of Operations and Finance, earning £210,000 per annum, on 1 February 2010. In July 2010 her employer gave her notice of dismissal, to expire on 1 February 2011. While that notice was still running, Miss Aalders presented an unfair dismissal claim on 11 January 2011. The employer then sent a letter purporting to dismiss her with immediate effect on 21 January 2011.
For “ordinary” unfair dismissal claims an employee needs to have at least one year’s service before he or she can present a claim to an employment tribunal. The key issue in this case was therefore whether the employer had effectively terminated employment on 21 January 2011 - before she had accrued a year’s service - or whether it should still be deemed to have ended on the expiry of the original notice period.
The EAT concluded that, where an employee is dismissed during the notice period, the date of termination is brought forward to the date of the summary dismissal. This is the case even if it has the effect of depriving that employee of the length of service required to present a claim of unfair dismissal. Miss Aalders could not therefore proceed with her claim for ordinary unfair dismissal.
However all is not necessarily lost for this claimant. There is a category of “day one” unfair dismissal claims which employees can bring without needing a year’s service. These include, for example, dismissal for a pregnancy-related reason, dismissal for whistleblowing, dismissal for a health and safety related reason, etc. The list also includes dismissal for asserting a statutory right. Miss Aalders’ case will therefore return to the tribunal. If it concludes that the employer’s principal reason for her summary dismissal on 21 January was the fact she had made an unfair dismissal complaint it will no doubt be held to be automatically unfair. It is hard to imagine what plausible explanation the employer might present to extricate itself in circumstances where her employment was already due to end in less than three weeks in any event.