Summary Dismissal Trumps Dismissal On Notice

The EAT has held in M-Choice UK Ltd v Alders UKEAT/2011/0227 that the summary dismissal of an employee who is under notice brings forward the effective date of termination (EDT) to the date of summary dismissal, even if that leaves the employee with insufficient continuous service to claim unfair dismissal.

The Claimant was given notice of termination which would have ended her employment after one year's service. She claimed unfair dismissal during her notice period.  Before she reached one year's service her employer summarily dismissed her and she then also claimed automatic unfair dismissal for having her employment terminated for asserting her statutory right not to be unfairly dismissed.

The EAT held that there could only be one EDT and that it was the date of summary dismissal. An employer should not be prevented from summarily dismissing an employee because it has already put that employee on notice. This meant the Claimant had not reached one year of service and was therefore deprived of the right to claim unfair dismissal.  In this case, however, the employee did still have the right to claim automatic unfair dismissal, which remains to be determined.