Pacitti Jones v O’Brien

Pacitti Jones v O’Brien

The Court of Session confirms that the dates on which employment starts and ends must be counted when calculating continuous service for the purposes of an unfair dismissal claim.

Ms O’Brien started work for Pacitti Jones on 8 April 2002. She was given one week’s written notice by a letter posted by hand to her home on 27 March 2003 (while she was away on holiday) which she did not receive until Monday 31 March 2003.

O’Brien brought a claim for unfair dismissal. The tribunal decided that O’Brien did not have one year’s continuity of employment and so could not bring her claim. It considered that O’Brien’s period of notice had begun on Friday 28 March 2003 and had expired on Thursday 3 April 2003.

The EAT overturned the decision and stated that the start date of the notice period was 1 April 2003 and the end date was 7 April 2003, meaning O’Brien’s claim was admissible.

Pacitti Jones appealed to the Court of Session arguing that one year’s continuous service would not be accrued until 8 April 2003. The Court of Session disagreed, holding that section 211(1)(a) of the Employment Rights Act 1996 expressly states that the first day of work and the effective date of termination must be included in the calculation and on that basis, O’Brien had a year’s continuous service and her claim was in time.

Key points

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Both the first and last date of employment must be counted when calculating continuous employment.

Notice will begin to run when the employee knows that they are going to be dismissed, not from the date on which the letter terminating the employment is delivered at their address (McMaster v Manchester Airport plc).

What you should do

• The method of calculating time periods for bringing and responding to employment claims varies. Always check the relevant provisions first and do not make assumptions
  
• Take care when considering dismissing an employee shortly before the date on which they have one year’s continuous service (and therefore acquire unfair dismissal rights)
  
• Include a notice provision in the contract of employment, stating when notice of termination under the contract is deemed to have been served.