Is it premature to submit a claim during a notice period?

2 mins

Posted on 13 Sep 2011

In July, the Employment Appeal Tribunal (EAT) heard an appeal by The Governing Body of Wishmorecross School against a decision of the employment tribunals in favour of the Claimant, Mrs Balado.

Mrs Balado was a teacher who was subjected to a disciplinary process following an incident involving a student. Mrs Balado took part in an investigation meeting and then, one week later, received a letter from the School saying that she would be summarily dismissed but had the right to appeal the decision by a specified date.

Mrs Balado appealed the School’s decision but the appeal upheld the decision to dismiss and it was confirmed that Mrs Balado’s employment would terminate on 26 October 2011.

Prior to the termination date, Mrs Balado initiated a claim in the employment tribunal for unfair dismissal. The School argued that the Claim was premature as her employment had not yet come to an end.

The employment tribunal concluded that the School had terminated Mrs Balado’s employment on notice and that according to section 111(3) of the Employment Rights Act 1996 she was entitled to present her claim prior to the effective date of termination.

Section 111(3) says that "Where a dismissal is with notice, an employment tribunal shall consider a complaint under this section if it is presented after the notice is given but before the effective date of termination".

At the EAT, Judge Underhill examined the construction of the letter which communicated the School’s decision and reached the decision that an employee in receipt of the letter would naturally have understood it as conveying an unequivocal decision to dismiss. Therefore, the EAT dismissed the appeal and found that Mrs Balado was entitled to commence a claim for unfair dismissal prior to the expiry of her notice period.

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