The EAT has held, in the case of Governing Body of Wishmorecross School v Balado, that an employee who was told she was summarily dismissed, subject to the outcome of an appeal, was in fact dismissed with notice.

Ms Balado was advised in July she was being summarily dismissed for gross misconduct, but that she had a right of appeal.  The letter stated that the decision to dismiss would not be put into effect until she had either chosen not to appeal, or if she did appeal, if and when that appeal was unsuccessful.  When her appeal was then unsuccessful in October, she was advised her dismissal would take effect a week later. Prior to her appeal hearing, she raised a claim for unfair dismissal in the employment tribunal.  Her employer argued that the tribunal did not have jurisdiction to hear her claim, as it had been presented prematurely – they argued she had not yet actually been dismissed at this stage, as she wasn't dismissed until the outcome of her appeal was known.  Ms Balado however argued that the letter in July constituted notice of dismissal and therefore the tribunal had jurisdiction under s113 of the Employment Rights Act 1996, which allows a claim to be presented after an employee has been served with notice of dismissal, but before the effective date of termination.

The question for the tribunal was therefore whether Ms Balado had been served with notice of dismissal in July.  Her employer had described her dismissal as a summary dismissal, which is normally understood to mean dismissal with no notice at all, however the EAT held it was clear that the intention on the part of the employer was not to effect an immediate dismissal.  However, the effect of the letter was to terminate Ms Balado's employment at some future date, conditional upon certain events occurring surrounding an appeal.  The fact that it was conditional in this way, the EAT said, did not prevent it from constituting notice of dismissal.  On that basis, it held that the tribunal had jurisdiction to hear the case.

Impact for employers

  • The circumstances of this case are quite unusual, as most employers' disciplinary policies provide that any right of appeal does not prevent the dismissal from taking effect.  Rather, the employee is still dismissed, but if the appeal is successful, the appeal decision is then overturned.  This case is therefore likely to have limited impact. 

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