If there is no PILON clause then the employer who dismisses without serving the required notice will be acting in breach of contract. This would allow them to pursue the employer for any sums due payable had they been allowed to continue working throughout their notice period, such as additional pay, benefits, bonuses, etc.
However, that does not mean that their qualifying service would have been extended by the period of the contractual notice period to take them over the necessary threshold to claim unfair dismissal protection.
Following the landmark decision in the case of Geys, it was noted that the question of when the contract terminates for unfair dismissal purposes is distinct from the question of when it terminates for common law purposes.
When it comes to the qualifying period for bringing an unfair dismissal claim, the date of termination can be extended where the statutory minimum notice period was not given. In this case, if the employer summarily dismisses (i.e. ends their employment with immediate effect, even if no PILON clause existed) the termination is extended by the statutory minimum notice period. For someone with less than 2 years’ service that would be 1 week. So in the best case scenario for the employee, they can extend their date of termination by 1 eek from the date of dismissal.
This was also confirmed in the case of Harper v Virgin, where the court held that an employee cannot go around the unfair dismissal qualifying period issue by arguing the employer’s breach of contract resulted in a loss of a chance to bring a claim for unfair dismissal.
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