Parker Rhodes Hickmotts Solicitors v Harvey

A later notice of dismissal may validly supersede an earlier notice by bringing forward the effective date of termination. This is so even if the employer's purpose is to prevent the employee obtaining the qualifying service required for ordinary unfair-dismissal protection, and even if the earlier dismissal might otherwise have taken effect later.

The rule against unilateral withdrawal of a notice of dismissal does not prevent an employer from giving a fresh notice that effects dismissal at an earlier date. The reason for the second dismissal, and whether it is wrongful, do not alter the effective date of termination for this purpose.

The claimant, a solicitor employed from 1 September 2009, received a letter on 28 July 2010 stating that his role would be redundant from 31 August 2010. The following day the employer sent an amended letter, received on 2 August, which substituted 28 August 2010 as the termination date.

The Sheffield Employment Tribunal held that the effective date of termination was 31 August 2010. It therefore found that the claimant had completed one year's continuous service and could pursue ordinary unfair dismissal. The employer appealed.

The central issue was whether the second letter effectively superseded the first notice, so that the claimant's employment ended before he obtained the necessary qualifying service.

1. Appeal allowed. The Employment Judge erred in treating 31 August 2010 as the effective date of termination. The second letter was effective to shorten the notice period. The effective date was, on the case advanced before the EAT, 28 August 2010, although 30 August was a possible alternative not pursued on appeal.

2. Applying Stapp v The Shaftesbury Society [1982] IRLR 326, as applied in M-Choice UK Ltd v Aalders, the later dismissal superseded the earlier notice. A summary dismissal and a dismissal on notice are both dismissals for the purposes of Part X of the Employment Rights Act 1996. The distinction urged between the authorities and this case was therefore immaterial.

3. The employer's reason for issuing the second dismissal, and whether it was wrongful, did not affect the statutory effective-date question under section 97(1)(a). The employer had consistently intended to dismiss the claimant before he acquired ordinary unfair-dismissal protection.

4. Riordan v The War Office [1959] 3 All ER 552 and Harris & Russell v Slingsby [1973] IRLR 221 concerned unilateral withdrawal of an existing notice, which requires the employee's consent. They did not govern this case. The employer did not withdraw the first notice in order to continue employment; it served a fresh notice which brought the dismissal forward. That was permissible, consistently with Secretary of State for Employment v Staffordshire County Council [1989] IRLR 117 CA.

5. The claimant had not completed one year's continuous service. The Employment Tribunal had no jurisdiction to entertain his unfair-dismissal claim, which was dismissed.

• Employment Appeal Tribunal: Allowed the employer's appeal, reversed the Sheffield Employment Tribunal's jurisdiction ruling, and dismissed the unfair-dismissal claim.
• Sheffield Employment Tribunal: At a pre-hearing review, held that the claimant had sufficient qualifying service because his effective date of termination was 31 August 2010.