M-Choice UK Ltd v Aalders

Where an employee is dismissed on notice and is summarily dismissed before the notice expires, the summary dismissal ordinarily displaces the earlier notice. The effective date of termination is the date of the summary dismissal, even if this deprives the employee of the qualifying service needed for an ordinary unfair-dismissal claim.

Section 111(4)(c) of the Employment Rights Act 1996 preserves the prospective notice-expiry date for the limited purpose of enabling a complaint presented during the notice period to be considered. It does not freeze the effective date of termination against subsequent events.

The employee received notice purporting to terminate her employment on 1 February 2011. During the notice period she presented an unfair-dismissal claim. The employer subsequently summarily dismissed her on 21 January 2011.

The employment judge treated the matter as involving separate ordinary and automatically unfair-dismissal claims, and held that the employee had the necessary one year’s continuous employment for the ordinary claim. The employer appealed. The central issues were whether there was one dismissal or two, and whether the summary dismissal displaced the earlier effective date of termination.

1. One claim. The employee had one claim of unfair dismissal advanced in two alternative ways. A single contract of employment could have only one date of termination. The dismissal therefore took effect either on 1 February 2011 or, if the later letter displaced the notice, on 21 January 2011.
2. Section 111 jurisdiction. [1995] IRLR 370 established that an intervening summary dismissal did not remove the tribunal’s jurisdiction over a complaint validly presented during the notice period. That decision concerned jurisdiction only. It did not determine whether the employee had acquired the substantive right not to be unfairly dismissed.
3. Construction of section 111(4)(c). The provision was intended to prevent a complaint presented during notice from being premature and to preserve the notice-expiry date for that jurisdictional purpose. The word “included” showed that it did not make the notice-expiry date conclusive in every circumstance. It did not address an earlier summary dismissal.
4. Effective date. Applying Stapp v The Shaftesbury Society [1982] IRLR 326, the summary dismissal brought the effective date of termination forward, regardless of whether the employer had good or bad reasons for dismissing summarily. The reasoning in Stapp concerning possible damages for loss of an unfair-dismissal claim was not part of its core reasoning and was unaffected by Harper v Virgin Net Ltd [2004] IRLR 390.
5. The employee was summarily dismissed on 21 January 2011 and had not then completed one year’s continuous employment. The appeal was allowed and the employment judge’s ruling was set aside. The tribunal would still have to determine whether the principal reason for the summary dismissal was the assertion of a statutory right, which could engage the automatic unfair-dismissal protection.

• Employment Appeal Tribunal: The appeal from the employment judge’s pre-hearing review ruling was allowed. The ruling that the ordinary unfair-dismissal claim could proceed was set aside.