It is common practice for employers to dismiss employees summarily rather than with notice where to give notice would enable an employee to accrue the necessary one year’s qualifying service (soon to increase to two years) to claim unfair dismissal. A new case has examined the extent of an employer’s ability to summarily dismiss where it has already given notice.  

In M-Choice UK Ltd v Aalders, Ms Aalders was placed on six months garden leave some six months into her contract and told that her employment would end on the anniversary of her joining M-Choice ‘at the latest’. Ms Aalders brought a claim for unfair dismissal stating that her employment was due to terminate on the one year anniversary. A fortnight before the proposed termination date, M-Choice wrote to say Ms Aalders’ employment was being terminated with immediate effect. Ms Aalders then amended her claim to state that the principal reason for her dismissal was because she had asserted a statutory right (which is automatically unfair under section 104(1) of the Employment Rights Act 1996).

The EAT overturned the tribunal judge’s decision that the second letter sent by M-Choice did not bring forward the effective date of termination. The EAT held instead that the dismissal date was the earlier date on which Ms Aalders was summarily dismissed. Ms Aalders did not therefore qualify to claim unfair dismissal. The legislation makes it clear that the effective date of termination is either when notice expires or when an employee is summarily dismissed. There was nothing in the legislation which entitled the courts to treat a situation as frozen in time with no regard to subsequent events (ie the summary dismissal).

This case makes clear that an employer is entitled, once it has given notice of dismissal, to supersede that notice with a summary dismissal, thereby disentitling an employee to claim unfair dismissal.