M-Choice UK Limited v Claimant X UKEAT/0227/11

Claimant X started with M-Choice on 1 February 2010 and was entitled to 6 months’ notice.  On 26 July she was placed on garden leave and given a letter stating that M-Choice was ending the working relationship as per 1 February 2011 at the latest.  She presented a claim for unfair dismissal on 11 January and made it clear in her ET1 that her employment was due to end on 1 February. 

On 21 January Claimant X received another letter informing her that M-Choice no longer required her to be on garden leave and her employment was being terminated that day with immediate effect.  She then amended her claim changing the date her employment ended to 21 January claiming the principal reason for her dismissal was because she had asserted a statutory right, such dismissal being automatically unfair.  At a pre-hearing review the employment judge took the view that she was bringing two separate claims of unfair dismissal.  The letter of 26 July properly construed gave her notice which took effect on 1 February, the only question was whether the letter of 21 January 2011 had the effect of bringing the effective date of termination forward. 

The Judge concluded that 1 February was the effective date of termination.  M-Choice appealed and the EAT allowed the appeal finding that the effective date of termination was 21 January.  The EAT proceeded on the basis that Claimant X was bringing one claim of unfair dismissal with her claim being advanced in two alternative ways.  It remitted the case to the employment tribunal for it to decide the reason for Claimant X's dismissal.  If the principal reason for her dismissal was that she had presented a claim for unfair dismissal she would not need a year’s qualifying service to bring such a claim.  If, on the other hand, the reason for her summary dismissal was something else she would need a year’s continuous service to bring her claim which she did not have. 

Key point:  Where a dismissal is with notice an employment tribunal can consider a complaint if it is presented after the notice is given but before the effective date of termination.  The fact that the tribunal had the jurisdiction to hear her complaint of unfair dismissal did not mean she had acquired the right not to be unfairly dismissed because that would depend on when she had the necessary period of qualifying service.  The date of issue of proceedings does not freeze the position on jurisdiction.