Expert Comments on Dismissal. How to Determine the Effective Date.
An employer who wants to be certain as to the effective date of an employee’s termination can best achieve this by handing the employee his or her dismissal letter personally. Communicating a dismissal verbally is also effective, although it may be more difficult to show evidence that the dismissal was actually communicated this way.
This issue will be of particular importance to employers who decide to dismiss an employee who is approaching one year’s continuous employment, before that employee attaining the right to bring an unfair dismissal claim. Given that the law adds on a week’s statutory notice to the period of continuous employment, it is essential in these circumstances that the employee is aware when the dismissal has taken effect. To avoid the employee attaining the right to bring an unfair dismissal claim, this must be more than a week before he or she reaches one year’s continuous employment. This is the case even if a payment in lieu of notice is made.
Employers who wish to dismiss employees before they accrue the right to bring an ordinary unfair dismissal claim should also be aware that a dismissal for an 'automatically unfair' reason (such as Trade Union membership) or for a discriminatory reason (such as the employee’s age) will still be actionable, as no qualification period applies to these types of claims.
It is worth noting that it is desirable, on public policy grounds, to interpret the time limit legislation in a way that is more favourable to employees. Therefore, employers should not expect to receive the benefit of the doubt in borderline cases on the question of whether a dismissal has been properly communicated.