Lancaster & Duke Ltd v Wileman UKEAT/0256/17/LA

Appeal against a ruling that the Claimant's length of service should be extended by the statutory notice period, thus bringing her within the 2 year qualifying period to make a claim at the ET. Appeal also against the failure by the ET to make a Polkey deduction. Both appeals allowed.

The Claimant was dismissed summarily 2 days before the second anniversary of starting work with the Respondent. She claimed at the ET that her statutory minimum notice entitlement of 1 week meant that her EDT should be deemed to fall 5 days after the 2 year anniversary, thus allowing her to make a claim of unfair dismissal at the ET. The ET agreed, rejecting the Respondent's argument that the Claimant's right to rely on her statutory minimum notice entitlement was displaced by virtue of section 86(6), which allowed that the section did not affect an employer's right to dismiss summarily by reason of an employee's conduct. The ET also did not make a Polkey deduction and the Respondent appealed on both points.

The EAT allowed the appeal. In allowing for the determination of the effective date of termination to be extended by the statutory minimum notice period, s97(2) ERA 1996 referred to "the notice required by s86" and thus incorporated the entirety of that section, including s86(6). That meant the deeming provision was subject to the employer's right to give no notice in the circumstances allowed by s86(6) and the ET had been wrong to hold otherwise. The ET had not considered whether the Claimant had in fact been guilty of gross misconduct (and therefore whether summary dismissal was available to the Respondent) so the matter was remitted for determination. The ET's refusal to make a Polkey reduction, where it had expressly stated that no question of such a reduction arose given it had found the dismissal to have been "substantively unfair", was contrary to the approach laid down in cases such as Lambe v 186K Ltd [2005] ICR 307 CA and W M Morrisons Supermarket plc v Kessab UKEAT/0034/13 and suggested the ET had wrongly limited its approach to the question whether there should be a just and equitable reduction in compensation. This matter was also remitted.

Published: 05/07/2018 13:13

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