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Effective date of termination

The Employment Appeal Tribunal in the case of Lancaster and Duke Ltd v Wileman has confirmed that the statutory extension to the effective date of dismissal does not apply in cases of gross misconduct.

The Law

Usually, an employee will only be able to bring a claim for unfair dismissal if they have accrued at least two years’ continuous service with the employer at the effective date of termination (“the EDT”). However, there is a provision in the Employment Rights Act 1996 which states that the EDT will be extended by the statutory minimum notice period in circumstances where the employee is not given their proper notice entitlement.

For example, an employee who is dismissed without notice or with a payment in lieu of notice two days before they have accrued two years’ service can have the statutory minimum notice (1 week) added to the EDT so that they qualify for protection from unfair dismissal.


The Claimant was dismissed for gross misconduct two days before she had accrued two years’ continuous service. When dismissing the Claimant, no disciplinary process was followed and she was not given any right to appeal against the decision.

The Claimant submitted a claim for unfair dismissal.


The Employment Tribunal decided that the statutory minimum notice of 1 week should be added to the EDT and therefore the Claimant’s claim for unfair dismissal could proceed. It went on to uphold the unfair dismissal claim on procedural grounds as there had been no reasonable investigation carried out and no fair process had been followed.

The Employment Appeal Tribunal disagreed. It found that the statutory provision of extension to the EDT does not apply in cases where an employee is lawfully dismissed without notice or payment in lieu of notice for gross misconduct.

The case was remitted to consider whether the Claimant had genuinely been dismissed for gross misconduct.


Although this case confirms that the EDT will not be extended in cases of gross misconduct, a tribunal will still consider if the reason for dismissal was genuinely gross misconduct. If the tribunal finds that gross misconduct was not the real reason for dismissal, the EDT will be extended and the employee could have a successful unfair dismissal claim.

It should not assumed that it is safe to dismiss an employee without following any procedure because they do not have two years’ service. Employers should carefully consider timeframes and the reason for dismissal if they intend to dismiss an employee close to the date when they would accrue two years’ service.

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