Determining the Date of Termination

At the start of July I chaired a discipline meeting via Zoom. As well as the employee who was answering allegations, his union representative and the investigating officer were also on the call. It was a long meeting and at the end I adjourned to check some points and reflect on what had been said to me.

In the Gisda Cyf v Barratt case [2010], the Supreme Court confirmed that the communication of summary dismissal by letter takes effect either when it is read, or when the recipient has had a 'reasonable opportunity' to read it.

Because of the Barratt case, I always communicate the news of summary dismissal on a person-to-person basis, usually by phone. In due course I telephoned the employee with my decision, which was to dismiss for gross misconduct. The same day I confirmed this to him by email, confirming that the date of termination of his employment was the date I had phoned and spoken to him. I also told him the detailed letter setting out my findings would follow and once he had received the letter he had five days within which to appeal.

A claim for unfair dismissal must be submitted within three months of the EDT, subject to any extension by ACAS early conciliation, so it’s important to correctly identify the effective date of termination (EDT).

The date of termination will normally be one of the following.

• Where an employee is dismissed for gross misconduct it will be the date on which that termination takes effect i.e. the date the dismissal is communicated to the former employee.
• If either the employer or employee give notice to terminate the employment contract, the date on which the notice period expires.
• If the employee is employed under a fixed-term contract, and his or her employment terminates upon expiry of that term, the date on which the termination takes effect.

What about a situation where the employer summarily dismisses an employee, and subsequently gives notice?

Ms Parkin was the Managing Director of a company which manufactured and distributed cosmetic products. Her employer, Cosmeceuticals Ltd, had concerns about Ms Parkin’s performance and, when she returned from a period of sabbatical leave on 1st September 2015, the Chairman told her that she could not return to her job.

On 4 September 2015, Ms Parkin was put on garden leave. On 29 September 2015, she received confirmation in writing that the respondent had given notice to terminate her employment, which would end on 23 October 2015.

When bringing the claim, both parties agreed that 23 October 2015 was the EDT. The Tribunal made a factual finding that there was an effective dismissal without notice on 1 September, and the company only subsequently put Ms Parkin on garden leave and gave her notice.

The EDT was the day on which her notice period ended, despite the fact there was an effective dismissal without notice on 1 September.

On appeal, the Employment Appeal Tribunal disagreed, stating that the date of communication to Ms Parkin of her summary dismissal is the EDT, even if the employer should have given notice in the circumstances, but failed to do so. The EDT in this matter was therefore 1 September and that was the relevant date for determining whether the claim was presented in time.

In this case the EDT was the date the dismissal is communicated to the employee, even if the employer should have given notice but failed to do so.

To avoid disagreements about the EDT, arrange for dismissal to be communicated in a meeting or by phone. This will resolve any argument around the EDT, which may arise when a letter of dismissal, sent to an employee’s home address by recorded delivery, and was either not received on the date of delivery but also if received but not read.

This is because, in the absence of evidence that an employee has deliberately not opened a letter summarily terminating their employment, the EDT is the date on which the employee learns of their dismissal i.e. the date on which the employee reads the letter informing of dismissal, and not the date on which the letter was written or posted.

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DISCLAIMER
Although every effort has been made to ensure the accuracy of the information contained in this blog, nothing herein should be construed as giving advice and no responsibility will be taken for inaccuracies or errors.

Copyright © 2020 all rights reserved. You may copy or distribute this blog as long as this copyright notice and full information about contacting the author are attached. The author is Kate Russell of Russell HR Consulting Ltd.