EAT rules dismissal is automatically unfair if the reason for dismissal during notice period is to deprive the employee of their right to claim.

The EAT has recently decided in M-Choice UK Ltd v Aalders UKEAT/0227/11, 10 August 2011 that where an employer dismisses an employee with notice, then purports to summarily dismiss them during the notice period, the effective date of termination (EDT) of the employee’s employment is the date of the summary dismissal.  This is in line with the Court of Appeal’s decision in Stapp v The Shaftesbury Society [1982] IRLR 326.  Although the employer, having given an employee notice is not prevented from summarily dismissing the employee during their notice period, it may deprive the employee of the right to claim ordinary unfair dismissal.  If the reason for the summary dismissal is the fact that the employee has asserted their statutory right to bring an unfair dismissal claim, the employer will hand the employee a claim for automatically unfair dismissal.

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