Employment Law - What a Difference a Day Makes!

A recent Scottish Court decision has highlighted how careful employers must be when assessing whether an employee has completed one year’s service and has, therefore, protection against unfair dismissal if employment is terminated.

A week’s notice was given, by post, to terminate a Ms. O’Brien’s employment.

The Employment Appeal Tribunal had decided that the period of notice commenced on 1st April and expired on 7th April.

The employers argued, in subsequent court proceedings, that Ms. O’Brien was one day short of a year’s employment when the notice took effect (7th April) and was, therefore, without unfair dismissal protection. They contended that a period of twelve calendar months commencing on 8th April in one year did not expire until the first moment of 8th April in the following year.

The Court disagreed - the day upon which Ms. O’Brien started work (8th April) was obviously to be included in the reckoning as to length of service, but so was the day upon which she finished work (7th April). Mrs. O’Brien was found, therefore, to have to been employed for 365 days, i.e. one year, and accordingly to be protected.

Employers should note as an aside that, in certain circumstances, an employee without one year’s service may still be able to claim unfair dismissal, if the reason for the dismissal is deemed to be automatically unfair.