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Can an employee’s “effective date of termination” be affected by their on-going appeal?

The effective date of termination (EDT) is when an employee’s employment officially ends. It is crucial for establishing, amongst other things, whether they are within the time limit for bringing an Employment Tribunal (ET) claim. For example, unfair dismissal claims must be brought within 3 months of the effective date of termination.

The Employment Rights Act 1996 defines an effective date of termination as either:

  • the date on which the notice period expires (if either the employer or employee gave notice to terminate the employment); or
  • the date on which that termination takes effect (if the employment terminates without notice)

The Employment Appeal Tribunal (EAT) in the recent case of Rabess v London Fire and Emergency Planning Authority considered whether the claimant’s EDT was affected by a subsequent appeal finding which resulted in the his employment tribunal application being out of time.

On 24 August 2012 Mr Rabess was dismissed summarily for gross misconduct. Therefore, this date was his EDT. At his internal appeal hearing, heard on 9 January 2013, although the original decision to dismiss was upheld, the appeal officer came to the conclusion that Mr Rabess’ conduct amounted to ‘misconduct’ rather than ‘gross misconduct’.

Mr Rabess would be paid 6 weeks’ notice in lieu as he was already on a live Final Written Warning, so his employment was still terminated, just not summarily. The appeal officer also confirmed his EDT as 24 August 2012.

There was an additional problem – there was no payment in lieu of notice clause (PILON) in his contract of employment!

Mr Rabess subsequently brought claims for unfair dismissal and breach of contract as there was no right under his contract of employment to pay notice in lieu. His claims were however brought more than 3 months’ after his EDT and were therefore technically out of time.

The pertinent question was whether Mr Rabess’ claims should be rejected, given the fact that the appeal decision was held on 9 January 2013 he was retroactively given 6 weeks’ notice at that point.

As the employer had not expressly changed the EDT, both the ET and EAT concluded that Mr Rabess’ employment ended on 24 August 2012, which ultimately meant that his claim was out of time. The EAT also disagreed with Mr Rabess and held that no notice would be ‘added on’ to the termination date.

Conclusion

This important case illustrates that despite the disciplinary sanction being reduced on appeal from gross misconduct to misconduct, the subsequent dismissal and termination date did not change. This was aided significantly by the appeal officer confirming in his appeal letter the original termination date. Furthermore, the EDT was not affected by the non-existent PILON clause in the contract– although, not paying or giving correct notice could nevertheless be a breach of contract claim.

All in all, the importance of the EDT cannot be emphasised enough. Employers should be clear as to when an employee’s employment ends and their position with regards to notice.

To avoid confusion employers should have in place clearly drafted disciplinary policies which set out the right to dismiss summarily and also reserve their right to do so in the contract of employment. A checklist or template for In-House HR Managers is also a good idea, as this would ensure a reminder that the EDT is expressly stated every time.

As always if I can provide you with any further assistance on contractual or any other issues, please do not hesitate to contact me for a free consultation on 0113 350 4030 or samira.cakali@scesolicitors.co.uk.


Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here. 

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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