Qualifying service: EDT not extended by statutory minimum notice where employer entitled to summarily dismiss (Lancaster & Duke Ltd v Wileman)

Article summary

Employment analysis: Section 97(2) of the Employment Rights Act 1996 (ERA 1996) provides that, when determining a claimant’s qualifying service for an unfair dismissal claim, the effective date of termination (EDT) is to be extended by the notice required to be given by section 86. Section 97(2) incorporates the entirety of section 86. This means that any potential extension to the EDT under section 86(1) (to include the statutory minimum notice period) is subject to section 86(6) which preserves the right for a party to give no notice where it is entitled to treat the contract of employment as terminable by reason of the conduct of the other party. As a result, there will be no deemed extension to the EDT by the statutory minimum notice period where the employer is entitled summarily dismiss the employee, eg in a case of gross misconduct, according to the EAT.