Governing Body of Wishmorecross School v Balado

A dismissal may be with notice for the purposes of section 111(3) of the Employment Rights Act 1996 even where it is conditional on the employee’s decision whether to appeal and, if an appeal is brought, its outcome.

The relevant question is whether the employer has communicated an unequivocal decision to dismiss with effect at a future date. A right of appeal does not itself make the notice equivocal. The employee may therefore present an unfair-dismissal complaint after notice is given and before the effective date of termination.

The claimant, a teacher, was informed after a disciplinary hearing that the employer had decided to dismiss her for gross misconduct. The dismissal would not take effect if she appealed in time, and would lapse if the appeal succeeded.

She presented an unfair-dismissal claim before the appeal was determined. The Employment Judge held that the claim was permitted by section 111(3) of the Employment Rights Act 1996. The employer appealed to the Employment Appeal Tribunal, which had to decide whether the conditional dismissal constituted a dismissal with notice.

1. The appeal was dismissed. The Employment Judge had jurisdiction to entertain the unfair-dismissal complaint.
2. The letter communicated a dismissal which was conditional in two respects. If no appeal was lodged, employment would terminate on the expiry of the appeal period. If an appeal was lodged and failed, employment would terminate when that outcome was notified. If the appeal succeeded, the notice would lapse.
3. That conditionality did not prevent the letter from being notice of dismissal. The natural understanding of an employee receiving such a letter would be that notice of dismissal had been given, even though the dismissal might be deferred or rescinded following an appeal.
4. This construction accorded with the purpose of section 111(3): an employee should be able to commence proceedings once an unequivocal decision to dismiss has been communicated, without waiting for the notice period to expire.
5. Morton Sundour Fabrics Ltd v Shaw [1967] ITR 84 was distinguishable. The authorities concerning unequivocal notice and an ascertainable termination date did not address a dismissal taking effect on a certain future date subject to a right of appeal.
6. The general proposition in Rai v Somerfield Stores Ltd (EAT/0557/02), concerning a notice dependent on an act which only the employee could choose to perform, did not extend to a dismissal on notice subject to a right of appeal.

• Employment Appeal Tribunal: dismissed the employer’s appeal and upheld the Employment Judge’s conclusion that the claim was not premature.
• Employment Tribunal, London South: Employment Judge Zuke held that the letter of 21 July 2010 amounted to termination with notice and that section 111(3) permitted the claim before the effective date of termination.