Employment Tribunal must determine whether employee guilty of gross misconduct when analysing the period of continuous service (Lancaster and Duke Ltd v Wileman, EAT)

In Lancaster and Duke Ltd v Wileman [2018] UKEAT 0256_17_040 the Employment Appeal Tribunal (“EAT”) held that in situations where an employee is ‘guilty’ of gross misconduct the ‘Effective Date of Termination’ (“EDT”) should not be extended by the statutory minimum notice period (for the purposes of calculating the employee’s length of continuous service).

The factual background of Lancaster and Duke Ltd v Wileman

Ms Wileman commenced employment with Lancaster and Duke Ltd (“Lancaster”) on 22 September 2014. She was judged as being a capable worker, if occasionally rude and aggressive, and she had a combative relationship with one of Lancaster’s directors.

On 20 September 2016 Ms Wileman was summarily dismissed on allegations of gross misconduct – no process was carried out before the dismissal, the allegations put to her were vague, and she was not given a right of appeal against the decision. Ms Wileman subsequently submitted a claim for unfair dismissal to the Employment Tribunal.

The Employment Tribunal upheld Ms Wileman’s claim for unfair dismissal, holding, as a preliminary point, that under section 97(2) of the Employment Rights Act 1996 (“ERA 1996”) where the employer dismisses an employee with less than the minimum required period of statutory notice the EDT is deemed to be the date on which the statutory period of notice would have expired. As at 20 September 2016 Ms Wileman would have been statutorily entitled to one weeks’ notice of termination, which would have expired on 27 September 2016. The Employment Tribunal therefore concluded that the correct EDT was 27 September 2016 and that Ms Wileman consequently had over two years’ continuous service, entitling her to bring a claim for unfair dismissal.

Lancaster appealed against the decision of the Employment Tribunal, arguing that section 86(6) ERA 1996 meant that, as Ms Wileman had been accused of gross misconduct, she was not therefore entitled to a period of statutory notice (and the EDT should therefore not be extended).

The decision of the Employment Appeal Tribunal

The EAT upheld Lancaster’s appeal, holding that section 86(6) ERA 1996 operated so as to eliminate an employee’s entitlement to statutory notice if they were ‘guilty’ of gross misconduct. The EAT held that the fact that the Employment Tribunal had not made a specific finding in its judgment as to whether Ms Wileman was guilty of gross misconduct as a matter of common law meant that his issue would have to be dealt with as a preliminary issue (in order to determine whether section 86(6) ERA 1996 was in fact engaged or not). This issue was therefore remitted to the Employment Tribunal.

Our solicitors’ comments on Lancaster & Duke Ltd v Wileman

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This Employment Appeal Tribunal decision clarifies an important issue of law that had not been specifically dealt with before by the appeal courts. In cases where there is less than two years’ continuous employment and allegations of gross misconduct are made, employees should check to see what statutory period of notice they’re entitled to (in order to determine whether they can bring a claim for unfair dismissal or not)”.

The full decision of the EAT in Lancaster & Duke Ltd v Wileman [2018] UKEAT 0256_17_0407 can be found here