As every trade union official should know, employees generally cannot bring a claim of unfair dismissal unless they have been continuously employed for a year.
In Pacitti Jones v O'Brien (IRLR 2005, 888), the Court of Session in Scotland has clarified the length of a year. It said that someone who starts work on 8 April and whose effective date of termination is 7 April, can bring a claim of unfair dismissal.
What were the facts?
Ms Jones started work for her employer on 8 April 2002. Almost a year later - on 27 March 2003 - she was dismissed and given one week's notice. She, however, was away from home at the time the letter was delivered, and did not receive it until 31 March.
She claimed unfair dismissal, but her employer said she had not been employed for long enough. And the tribunal agreed with the employer, saying that her period of notice expired on 3 April. The employment appeal tribunal (EAT) said that as the period of notice did not expire until 7 April (having started on 1 April), her claim was admissible.
By the time the parties reached the appeal court, they had agreed that the period of notice expired on 7 April 2003.
What does the law say?
Section 94 of the 1996 Employment Rights Act (ERA) states that employees have the right not to be unfairly dismissed. However, that is qualified by section 108(1) which says they have to have been continuously employed for a year ending with the effective date of termination to bring a claim of unfair dismissal.
The question then is how to calculate the period of continuous employment. Section 211(1) says that the period of continuous employment "begins with the day on which the employee starts work". Section 210(2) says that a month means a calendar month, and a year means a year of 12 calendar months.
What did the parties argue on appeal?
The employer argued that a calendar month generally runs from a date in one month to the corresponding date in the succeeding month - for example, from 8 April to 8 May. The position was different only if the months were of different lengths. So, for example, the calendar month starting on 31 January ended on 28 February.
They relied on the House of Lords case of Dodds v Walker, which said that "the general rule is that the period ends upon the corresponding date in the appropriate subsequent month, i.e. the day of that month that bears the same number as the day of the earlier month on which the notice was given."
Ms Jones, on the other hand, argued that section 211(1)(a) included the first day of employment in the calculation. In other words, the period from 8 April 2002 to 8 April 2003 added up to a year and a day. The year that started on 8 April 2002 ended on 7 April 2003.
What did the court of session decide?
The Court of Session (the Scottish equivalent of the Court of Appeal) agreed with her. It said that Ms Jones could claim unfair dismissal, as she had been employed for exactly one year on the effective date of termination.
To work out whether she had one year's continuous employment to claim unfair dismissal, the court emphasised that section 211(1)(a) makes clear that the first day of work has to be included in the calculation.
And that was fatal to the employer's argument. The court made clear that the "corresponding date rule", identified in Dodds v Walker, does not apply if the statute says that the date on which the relevant event occurred has to be included as part of their calculation.