How to calculate length of service

20 Apr 2012

The period of employment before an employee is qualified to bring a claim of unfair dismissal is one year for those engaged on 5 April 2012 or earlier.  For those engaged on 6 April 2012 or later, it is two years.  However, the principles applied in the case of Parker Rhodes Hickmotts Solicitors v Mr C Harvey are relevant to all.

Mr Harvey was employed by the Respondent as a Solicitor on 1 September 2009.  The age old question was when did his employment end? 

On 28 July 2010, the Respondent’s Managing Partner met Mr Harvey and gave him notice of termination.  She told him that there was not enough work for him and they did not want him to work long enough so that he acquired the right not to be unfairly dismissed.

The dismissal letter that she gave him gave notice to expire on 31 August 2010 and required him to work some of his notice.  Bearing in mind that he had holiday booked, he was asked to work until 9 August, to take his holiday and then be paid in lieu of the rest of his notice period.

The Managing Partner than realised that as Mr Harvey had started work on 1 September 2009, giving him notice to expire on 31 August 2010 meant he would be employed for one year by the time his notice expired, which was the own goal that she was keen to avoid. 

To deal with this situation, on 29 July 2010, the Managing Partner sent Mr Harvey another letter dated 28 July, that he said he did not read until 2 August.  The only difference between this letter and the first letter, dated 28 July (that she handed to him) was that it said that his notice period would expire on 28 August and not 31 August. 

The Claimant subsequently made a claim of unfair dismissal. 

The Employment Tribunal decided that the first letter applied and that as this stated that his notice would expire on 31 August, he was qualified to make a claim of unfair dismissal.

On appeal, the Employment Appeal Tribunal decided that there was clear Court of Appeal authority that while employers cannot unilaterally withdraw notice once given and, by extension, may not be able to unilaterally vary the date of termination first given, employers can give a new, separate notice, with an earlier termination date, which has the effect of depriving the Claimant in this case of the right to claim unfair dismissal.

As a result, the Claimant did not have a year’s service and so did not have the right to claim unfair dismissal.

Employers routinely allow employees that they have decided to dismiss to acquire the right to bring a claim of unfair dismissal.  This is, of course, the proverbial own goal.  It can easily be avoided by using probationary periods and extensions thereof sensibly, clearly and fairly.