EAT holds that employee who was told her summary dismissal would not be effective unless she chose not to appeal or her appeal was unsuccessful, was dismissed with notice.
The respondent School in this case had argued that Ms Balado’s claim of unfair dismissal had been presented prematurely (as she had not yet been been dismissed or given notice of dismissal at the time she lodged her complaint) and therefore the tribunal did not have jurisdiction to hear it.
The EAT upheld the employment judge's decision that, in advising Ms Balado that she was to be summarily dismissed, the School had given her notice of dismissal and therefore Ms Balado’s claim was not premature.
The EAT held that section 111(3) of Employment Rights Act 1996 (which allows for claims of unfair dismissal to be presented after notice has been given but before the employment has terminated) enables employees to commence unfair dismissal claims once an “unequivocal decision to dismiss” had been made and communicated. The EAT held that a dismissal could not be described as equivocal only because of the existence of the right of appeal.
This case is unusual in relation to both its facts (the School had an unusual process for dealing with appeals against summary dismissal), and the circumstances in which the issue arose before the Tribunal (the School raised a technical jurisdictional argument because the employee had presented her claim before the outcome of her appeal had been communicated).
It emphasises the need for employers to be clear as to not only the reason for dismissal and date on which termination will be effected, but also the date from which the employee is to be treated as “on notice”.