One year period of continuous employment...yes or no ?

[et62]

I commenced full time employment on 1 March 2010 with a large scale PLC and was dismissed on 13 January 2011 due to the fact that my services were no longer required at my designated place of work. I was serving as a consultant on behalf of my employer at a client's facility situated 5 miles away from my permanent place of residence and the client had decided to cease engagement of an outsourced consultant ( ie myself) and directly employ a full time replacement.

 

I was due a notice period of one month. However, my employer wished to re deploy me at a separate facility also situated near my home town , but only for a temporary period and thus my notice period was extended to February 28 2011, and as such I presume that Feb 28 (ie tomorrow) is my effective date of termination. My employer stated that they may find me alternative employment during this extended notice period but no such enquiries or discussions were held. I do not wish to go into detail but I am of the opinion that I may in fact have been "unfairly dismissed".

 

I am , however, aware that generally speaking I need to have a minimum of one years service in order to submit an ET claim for unfair dismissal. Is the time period from Monday 1 March 2010 through to Monday 28 February 2011 classified as exactly one years service ? I was continuously employed throughout this period.

 

I am hopeful that I have just (but only just !) attained exactly one year's service. Do forum members agree ?

[honeybee13]

Hello again et. In case it helps people trying to help you, is this linked with your question about your training contract?

 

My best, HB

[papasmurf1cx]

I don't know the answer, but tend to think like you that it could be !! I am sure this will be an interesting thread among the lawyers here. I want to know the answer too!!

[madari]

Best thing to do is to submit an Et1 Claim form before the three month period, from the date of dismissal.[regardless]

 

The tribunal will then inform you if your claim is allowed or rejected.

 

They will also give you reasons for rejecting the claim if the claim is rejected.

 

Good luck

[et3]

Hello again et. In case it helps people trying to help you, is this linked with your question about your training contract?

 

My best, HB

 

Regardless, looks like a fairly intriguing query and look forward to replies from learned forum members.

Edited February 27, 2011 by et3
clarification

[elpulpo]

Aye, if ya don't try, ya won't know. You're hardly going to be accused of being vexacious just on the qualifying length of service being slightly contentious, I'd have thought.

Providing your UD claim isn't a load of pollocks too.

[honeybee13]

Isn't the fish spelled pollack, Pulpo? Good afternoon btw.

 

My best, HB

[et3]

Having looked at deadlines for submission of an ET1 claim form to the Tribunal there may be a parallel with the posted query.

 

A claim must be submitted within 3 months. But that is defined as three months less one day. Surely then one years service must be one year less one day. If for example one was a nurse and your first day of employment was January 1 and their effective date of terimination was December 31st then surely that time period represents one year ??? Along similar lines then I would hope that in law the period from March 1 to Feb 28 also represents one year ( excluding leap years of course !) .

[elpulpo]

Isn't the fish spelled pollack, Pulpo? Good afternoon btw.

 

My best, HB

Good afternoon, HB. You're correct.

That wasn't the word I was alluding to, a letter was changed for raisins of decency.

[elpulpo]

And if you shop in S**nsburys, it's a load of Colins, apparently.

[SarEl]

Having looked at deadlines for submission of an ET1 claim form to the Tribunal there may be a parallel with the posted query.

 

A claim must be submitted within 3 months. But that is defined as three months less one day. Surely then one years service must be one year less one day. If for example one was a nurse and your first day of employment was January 1 and their effective date of terimination was December 31st then surely that time period represents one year ??? Along similar lines then I would hope that in law the period from March 1 to Feb 28 also represents one year ( excluding leap years of course !) .

 

No. Afraid not. Because it isn't a year any way - it is 52 weeks. And there is no "less a day". But since, by my adding, 52 weks ended on 27thth February, I make it one day over and therefore within time.

[et62]

No. Afraid not. Because it isn't a year any way - it is 52 weeks. And there is no "less a day". But since, by my adding, 52 weks ended on 27thth February, I make it one day over and therefore within time.

 

Thanks SarEl......hope you don't mind me asking, but how confident are you that the legal definition of one years service in respect of the qualifying period for u/f dismissal is 52 weeks ?

 

According to your calcs 52 weeks will end on 27 February 2011....but that is a Sunday.....but as 28 February is last day can I therefore presume that I will have achieved the "one year" qualifying period based on a start date of Monday 1 March 2010.

[SarEl]

Thanks SarEl......hope you don't mind me asking, but how confident are you that the legal definition of one years service in respect of the qualifying period for u/f dismissal is 52 weeks ? 5 zillion %. This is first year law school stuff. It is actually 52 weeks or 51 weeks plus one weeks statutory notice if no notice is given. For now. Soon to be two years (104 weeks) again!

 

According to your calcs 52 weeks will end on 27 February 2011....but that is a Sunday.....but as 28 February is last day can I therefore presume that I will have achieved the "one year" qualifying period based on a start date of Monday 1 March 2010. Quite - but weeks contain Sundays! Not everyone works Monday - Friday.

 

This of course only means that you are able to make a claim - not that you will win one.

[elpulpo]

I know one thing for sure, the Respondant will try arguing the Applicant doesn't qualify like it's going out of fashion.

[SarEl]

If the dates (and my maths) are correct - they can't.

[elpulpo]

If the dates (and my maths) are correct - they can't.

They'll still try.

[elche]

If for example one was a nurse and your first day of employment was January 1 and their effective date of terimination was December 31st then surely that time period represents one year ???

 

Hi et3. Yes it would appear that the nurse in your example would have the one years service necessary to submit the UD claim. The law makes no reference to 52 weeks and this is certainly not how it is calculated. Allow me to explain and support the above.

 

The legal basis, of an 'ordinary' unfair dismissal claim is that -

 

1) s.94 of the ERA 1996 gives EE's a right not to be unfairly dismissed.

 

2) s.108 says that the right in s.94, ".... does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than one year ending with the effective date of termination."

 

3) s.210 says that," In any provision of this Act which refers to a period of continuous employment expressed in months or years .....a year means a year of twelve calendar months."

 

[in addition, the law is clear that you start counting from your first day of employment up to and including the EDT (we will assume that the EDT is agreed as per your example).]

OK the above sounds simple...... .

 

So how do we calculate this 'year of twelve calendar months'?

 

Well this has received some (Scottish) judicial consideration. In Pacitti Jones' appeal against a claim brought by their ex employee Claire O'Brien.

 

In this case the ER (Pacitti) argued that the EE (O'Brien) did not have the 12 months continuity to bring a UD claim. She started work on the 8th April 2002 and had an EDT of 7th April 2003.

 

The court decided that the above WAS sufficient to count as a 'year of twelve calendar months'.

 

Thus, to me, the law seems clear on this and thus if your facts are comparable to Miss O'Brien then your ER would be unlikely to succeed in an argument that you did not have the 12 months needed to bring a UD claim.

 

Of course the above only relates to your ability to make the claim, it is not a comment on your chances of success if you do!

 

Hope this helps clarify this

 

Che

[et62]

Hi et3. Yes it would appear that the nurse in your example would have the one years service necessary to submit the UD claim. The law makes no reference to 52 weeks and this is certainly not how it is calculated. Allow me to explain and support the above.

 

The legal basis, of an 'ordinary' unfair dismissal claim is that -

 

1) s.94 of the ERA 1996 gives EE's a right not to be unfairly dismissed.

 

2) s.108 says that the right in s.94, ".... does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than one year ending with the effective date of termination."

 

3) s.210 says that," In any provision of this Act which refers to a period of continuous employment expressed in months or years .....a year means a year of twelve calendar months."

 

[in addition, the law is clear that you start counting from your first day of employment up to and including the EDT (we will assume that the EDT is agreed as per your example).]

OK the above sounds simple...... .

 

So how do we calculate this 'year of twelve calendar months'?

 

Well this has received some (Scottish) judicial consideration. In Pacitti Jones' appeal against a claim brought by their ex employee Claire O'Brien.

 

In this case the ER (Pacitti) argued that the EE (O'Brien) did not have the 12 months continuity to bring a UD claim. She started work on the 8th April 2002 and had an EDT of 7th April 2003.

 

The court decided that the above WAS sufficient to count as a 'year of twelve calendar months'.

 

Thus, to me, the law seems clear on this and thus if your facts are comparable to Miss O'Brien then your ER would be unlikely to succeed in an argument that you did not have the 12 months needed to bring a UD claim.

 

Of course the above only relates to your ability to make the claim, it is not a comment on your chances of success if you do!

 

Hope this helps clarify this

 

Che

 

Excellent reply and thank you.

 

I am rather confused how a Barrister such as SarEl could, however, be slightly incorrect in interpreting the law. Anyhow, either way it appears that the period from March 1 through to last day in February ( ie Feb 28) is a year in anyone's book.

 

Epulpo - are you always so negative ????????????????

 

Thanks to you all.

[honeybee13]

From memory, et62 you're a lawyer too, aren't you? But you're still on here asking for advice, which is given freely. At the end of the day, you might deem it wise to doublecheck the advice and pay a fee and this is your choice.

 

Fwiw, Elpulpo has a great sense of humour, if you take the time to read some of his posts, but is probably speaking from bitter personal experience from what I know of him from the forum.

 

My best, HB

[et62]

Noted Honeybee - I was just a bit surprised by the negativity that's all.

[honeybee13]

Noted Honeybee - I was just a bit surprised by the negativity that's all.

 

I wouldn't take it personally, I'm sure that wasn't how it was meant. But Pulpo probably found this out the hard way and we know from the forum the hardball games that the 'other side's' lawyers and employers come to that, can play. I hope you never find out.

 

My best, HB

[elpulpo]

Aye, HB knows me well. I'm not saying the Rspndt will succeed, but they'll try anything they can.

That's not negative, just realistic.

Edited February 28, 2011 by elpulpo

[SarEl]

Excellent reply and thank you.

 

I am rather confused how a Barrister such as SarEl could, however, be slightly incorrect in interpreting the law. Anyhow, either way it appears that the period from March 1 through to last day in February ( ie Feb 28) is a year in anyone's book.

 

Epulpo - are you always so negative ????????????????

 

Thanks to you all.

 

Virgin net v. Herbert - the original EAT was, I think 2002/03, and went to the HIgh Court, I think, 2005, established that contractual notice did not count towards the qualifying period but that for the purposes of calculating the one year qualifying period the test was 51 weeks plus a weeks statutory notice = 52 weeks. The claimant actually lost the case because they were attempting to include contractual notice.

[jonnycooper]

I think this is the one

Harper v Virgin Net Ltd [2004] EWCA Civ 271 (10 March 2004)

Virgin Net Ltd v Harper [2003] UKEAT 0111_02_0907 (9 July 2003)

[elche]

I think this is the one

Harper v Virgin Net Ltd [2004] EWCA Civ 271 (10 March 2004)

Virgin Net Ltd v Harper [2003] UKEAT 0111_02_0907 (9 July 2003)

 

Hi JC,

 

Thanks for the links above. I assume this is the case to which you refer Sarel?

 

Virgin net v. Herbert -, established that .. for the purposes of calculating the one year qualifying period the test was 51 weeks plus a weeks statutory notice = 52 weeks.

 

I'm sorry, I have to be blunt. I can't agree with this.

 

For reasons given in my earlier post and this post, I believe that It simply cannot be the legally correct way to calculate the qualifying period for UD.

 

It appears that the above describes the effect of s.97 of the ERA 1996 – not the ratio of the Herbert (hereinafter Harper) case.

 

I see the ratio of the Harper case as being that there is, “.... no right to claim compensation for loss of an opportunity to claim unfair dismissal.” Overturning Raspin v United News Shops. http://www.thompsons.law.co.uk/ltext/l1270002.htm

 

Going back to the original question.

 

It is clear that to be able to claim 'ordinary' UD you need one year's continuous employment. The definition used in the ERA which is the relevant law on this is one year – not 52 weeks.

 

The question asked was - Is 1st March 2010 to an EDT of 28th February 2011 one year of continuous employment for the purposes of claiming UD? - Pacitti says that it is.

 

Unfair Dismissal is a statutory creation, currently regulated by the ERA.. LJ Brooke in the Harper case comments on this -.

 

A statutory right not to be unfairly dismissed ...... is currently set at one year's continuous employment (1996 Act, as amended, s 108(1)).

 

The ERA 1996 uses the words 'not less than one year' and goes on to say a year, '...means a year of twelve calender months.' (Sections 108 and 210 respectively).

 

Pacitti explains that, because you count from the first day of employment up to and including the EDT if you count 8th April 2010 - 8th April 2011 you actually have one year and one day.

 

Hence Lord Reed's comments at para 16 of the Pacitti judgement -

 

….. we consider that the period of twelve calendar months, which began with 8 April 2002, ended with 7 April 2003. When the appellant's employment was effectively terminated on that date, she had therefore been continuously employed for a period of not less than one year

 

I note that all I see for the above after investigation into this; is that the test appears to be consistently applied as one year as per the ERA – not 52 weeks.

 

I really cannot see how any credible argument can be advanced that the measurement of time for calculating the qualifying period for an UD claim is measured in any other way than this; i.e one year which consists of 12 calendar months??

 

Che

Edited March 1, 2011 by elche
spelling!