Student lawyer Joanna Garvey-Smith assesses the computation of time in the case of Pacitti Jones v Claire O’Brien  CSIH 56 and asks “If You are Given Notice Shortly before Completing the One-Year Qualifying Period, Can You Claim Unfair Dismissal?”
Ms O’Brien started working for the Glasgow-based estate agent firm Pacitti Jones on 8 April 2002. On 27 March 2003, while she was away, a letter arrived at her home. On 31 March, she opened it, to find the words:
“… we are now terminating your employment with one week’s notice from today”.
She applied to have her case heard at an Employment Tribunal but was told her employment ended on 3 April 2003 (a week’s notice from 28 March) meaning she did not have the necessary one-year qualifying period to proceed with a claim for unfair dismissal as required by section 108(1) of the Employment Rights Act 1996.
Ms O’Brien appealed and won, referring to the case of McMaster v Manchester Airport plc  IRLR 112 which showed that the period of statutory notice could not run until the employee was aware they were being dismissed.
The appeal raised a significant point concerning the computation of time in connection with employment rights: it had been a mistake to calculate notice from the date on which the letter terminating the employment was delivered to the address.
The Employment Appeal Tribunal decided she had only been ‘given notice’ when she received the letter on 31 March, with the seven-day period commencing the next day (1 April 2003) and expiring a week later (7 April 2003). Having started work on 8 April 2002, her length of employment was now exactly one year and the claim for unfair dismissal could be heard.
A Year, or Not a Year? That is the Question!
Pacitti Jones appealed the EAT’s decision, taking the case to the Inner House of the Court of Session, Scotland’s Civil Supreme Court. Both parties now accepted that the period of notice expired on 7 April 2003, but Ms O’Brien’s former employer argued, for the first time, that the period of one year from 8 April 2002 ended on 8 April 2003, meaning she would be one day short of the qualifying period.
Both sides referred to the Employment Rights Act 1996.
Representatives of Pacitti Jones referred to Section 210(2)(b) which sets out that “a year means a year of twelve calendar months”. The length of a calendar month had been discussed in the case of Dodds v. Walker  1 WLR 1027, which seemed to support the argument that it usually ran from a date in one month to the corresponding date in the succeeding month: for example, from 8 April to 8 May.
Ms O’Brien’s legal team used Section 211(1) to highlight the need for both the first and last date of employment to be counted when calculating the qualifying period:
“An employee’s period of continuous employment for the purposes of any provision of this Act—
(a) … begins with the day on which the employee starts work, and
(b) ends with the day by reference to which the length of the employee’s period of continuous employment is to be ascertained for the purposes of the provision. ”
The Ruling of the Court of Session
The main question was whether the period which began on 8 April 2002 and ended on 7 April 2003 was a period of less than twelve calendar months. They decided it was not:
“If the period of one year beginning with 8 April in one year did not end until 8 April in the succeeding year, a year would comprise 366 days (or 367, in a leap year), rather than 365 (or 366, as the case may be).”
The Inner House of the Court of Session ruled that Section 94 of the Employment Rights Act 1996 (the right not to be unfairly dismissed by an employer) did indeed apply. Ms O’Brien had won her case.
Readers may wonder if Scottish case law is relevant to workers in England and Wales, since Scotland has its own legal system. The answer is: yes; Scottish cases have persuasive effect and can cross over when they reach the Court of Session, which has a right of appeal to the UK Supreme Court.
Two key points helped nudge Ms O’Brien to victory in this case. The first was Pacitti Jones’s decision to send notice by letter. The Employment Appeal Tribunal had little sympathy with this, as “it is in the hands of the employer to determine how he communicates his intention to terminate employment to his employee. As is pointed out in Manchester, the safest course is communicated verbally, even if followed by a letter. To rely upon a letter alone may create the sort of difficulties that this case has thrown up.”
While clear communication at the point of giving notice is important, it would be prudent to avoid any doubt from the start by setting out in the employment contract how both parties are to give notice of termination and when it is deemed to have been served.
Ms O’Brien’s second win was due to the requirement to count both the first and the last days of employment when calculating the qualifying period. Employers should take care dismissing an employee shortly before the date on which they have one year’s continuous service (and therefore acquire unfair dismissal rights). Accuracy and timeliness are paramount when bringing and responding to employment claims.
So if you are given notice shortly before completing the one-year qualifying period, especially if there is doubt about when exactly you realised you were being dismissed, remember that a statutory notice period may be applicable and your final ‘end date’ may be some time after the last day worked. Both parties should carefully check their time calculations against the ACAS guidelines after seeing the difference a day made in this case where the employee was, in the end, able to claim unfair dismissal.