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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Rabess v. London Fire and Emergency Planning Authority (Jurisdictional Points : Claim in time and effective date of termination  UKEAT 0029_14_2409 (24 September 2014)
Cite as:  UKEAT 0029_14_2409
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|At the Tribunal|
|On 9 June 2014|
HIS HONOUR JUDGE DAVID RICHARDSON
Transcript of Proceedings
|For the Appellant||MR EDMUND WILLIAMS
Anthony Gold Solicitors
The Counting House
53 Tooley Street
|For the Respondent||MISS NATASHA JOFFE
London Fire & Emergency Planning Authority
169 Union Street
JURISDICTIONAL POINTS - Claim in time and effective date of termination
The Claimant was summarily dismissed for gross misconduct. His last day of service was 24 August. His internal appeal was heard on 9 January. The internal appeal reduced the finding from gross misconduct to misconduct. Since the Claimant was already subject to a final written warning he was still dismissed but he was told that he would receive – and did receive – pay in lieu of notice. It was argued that the decision on the internal appeal changed the effective date of termination for the purposes of calculating the time limit applicable to a claim of unfair dismissal. The Employment Judge found that it did not.
Held: appeal dismissed. The decision on internal appeal did nothing to alter the effective date of termination. Gisda Cyf v Barratt  ICR 1475, Robert Cort and Son Ltd v Charman  ICR 816 and Fitzgerald v University of Kent at Canterbury  ICR 737 considered and applied. Hawes & Curtis Ltd v Arfan  ICR 1244 distinguished: in that case the decision on appeal expressly altered the date at which dismissal took effect.
HIS HONOUR JUDGE DAVID RICHARDSON
"Effective date of termination
Subject to the following provisions of this section, in this Part 'the effective date of termination' –
(a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires,
(b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect, and
(c) in relation to an employee who is employed under a contract for a fixed term which expires without being renewed under the same contract, means the date on which the term expires."
The Background Facts
"62. The outcome of the appeal will be either:
The case against the employee is upheld (in whole or in part); the sanction will then be the same or a lesser penalty.
The case against the employee is not upheld.
64. In cases of gross misconduct dismissal will be summary following the hearing. If the employee is reinstated on appeal, pay will be reinstated and backdated.
65. In other cases of dismissal, employees shall be given contractual notice of dismissal following the hearing. Every effort will be made to conclude any appeal process within the notice period. Where it has not been possible to conclude the appeal process within the notice period, notice may be extended for a reasonable period with a view to concluding the appeal process within the notice period. If the dismissal is not upheld on appeal, the employee will be reinstated."
"As you were already on a Final Written Warning, this does not alter the fact that the penalty is dismissal, and therefore I do not uphold your appeal. However it does mean that you will be entitled to notice pay, and arrangements will be made for this to be paid to you.
I will confirm my decision in writing, and aim to do this within seven days. This decision is final, there are no further internal avenues for appeal."
"I upheld the decision of DAC Orbell to find the charges proven, however my finding is that the charges amounted to 'Misconduct' and not 'Gross Misconduct'. Nevertheless, as you had a live Final Written Warning on your file at the time of the original hearing, in finding the charges proven as 'Misconduct', I confirmed the decision of dismissal.
Whilst your last day of service remains as 24 August 2012, you are now entitled to six weeks pay in lieu of notice. Payroll have advised that the gross payment amounts to £3,871.02."
The Employment Judge's Reasons
"The ancillary point I take from Roberts comes from the citation of the 1996 House of Lords decision in West Midlands Co-operative Society Ltd v Tipton. Mummery LJ cites Lord Bridge: 'If the appeal is not successful and it is decided that the original decision of instant dismissal was right and is affirmed, then the dismissal takes effect on the original date.' As I have set out above, the employer deciding the appeal determined that the decision of dismissal was 'confirmed'; and the last day of service was explicitly reconfirmed as 24 August. It seems to me to be clear beyond and real doubt that the outcome of the appeal can have no effect upon the effective date of termination. In accordance with section 97(1)(b) the date in relation to this employee, whose contract of employment had been terminated without notice, is the date on which the termination takes effect. All that the employer was doing in this case was to recognise that at common law the Claimant had not repudiated his contract. It follows that he was entitled to pay in lieu of notice, being the liquidated damages to compensate for the employer's breach."
Discussion and Conclusions
"37 We do not consider, therefore, that what has been described as the 'general law of contract' should provide a preliminary guide to the proper interpretation of section 97 of the 1996 Act, much less that it should be determinative of that issue. With the proposition that one should be aware of what conventional contractual principles would dictate we have no quarrel but we tend to doubt that the 'contractual analysis' should be regarded as a starting point in the debate, certainly if by that it is meant that this analysis should hold sway unless displaced by other factors. Section 97 should be interpreted in its setting. It is part of a charter protecting employees' rights. An interpretation that promotes those rights, as opposed to one which is consonant with traditional contract law principles, is to be preferred.
41 The essential underpinning of the appellant's case, that conventional principles of contract law should come into play in the interpretation of section 97, must therefore be rejected. The construction and application of that provision must be guided principally by the underlying purpose of the statute viz the protection of the employee's rights. Viewed through that particular prism, it is not difficult to conclude that the well established rule that an employee is entitled either to be informed or at least to have the reasonable chance of finding out that he has been dismissed before time begins to run against him is firmly anchored to the overall objective of the legislation."
"7. The concept of the effective date of termination 'EDT' is a statutory one. It has been present in the employment legislation since its origin in 1971. Its purpose is to give a fixed point of time by which to calculate such things as eligibility for protection against unfair dismissal, continuity of employment, loss of rights on reaching retiring age, the amount of the basic award and (as in this case) the time for lodging an originating application.
20 ….. the effective date of termination is a statutory construct which depends on what has happened to the parties over time and not on what they may agree to treat as having happened."
"We will assume, without deciding, that the acceptance view is correct and that, where an employer dismisses an employee without giving the length of notice required by the contract, the contract itself is not thereby determined but will only be determined when the employee accepts the repudiation. Even on that assumption, we think that the effective date of termination for the purposes of section 55 (4) is the date of the dismissal and not a later date. We reach this conclusion for the following reasons:
(1) The decision of the Court of Appeal in the Dedman case is the only decision concerned directly with section 55 (4) of the Act. In the other decisions, section 55 (4) is not, so far as we can see, referred to.
(2) The Act seems to have been drafted on the footing that the unilateral view is correct, i.e. a dismissal even without the contractually required notice terminates the contract. Thus, in section 55 (4) (a) (dealing with the case of termination by notice) it is the date of the expiry of the notice served which is the effective date of termination: nothing in the subsection suggests that this is so only where the length of notice served complies with the contractual obligation. Again, section 49 of the Act lays down certain minimum periods of notice which have to be given. Section 55 (5) provides that where either no notice or notice shorter than that required by section 49 is given, the effective date of termination is the date on which the notice required by section 49 would have expired. Such provision would have been unnecessary if the draftsman had considered that the contract, would not otherwise have been terminated by an unlawful notice.
(3) Section 55 (4) (b) defines the effective date of termination as being the date on which "the termination takes effect." The word "termination" plainly refers back to the termination of the contract. But the draftsman of the section does not refer simply to the date of the termination of the contract, but to the date on which the termination "takes effect." As we have pointed out, even on the acceptance view the status of employer and employee comes to an end at the moment of dismissal, even if the contract may for some purposes thereafter continue. When dismissed without the appropriate contractual notice, the employee cannot insist on being further employed: as from the moment of dismissal, his sole right is a right to damages and he is bound to mitigate his damages by looking for other employment. We therefore consider it to be a legitimate use of words to say, in the context of section 55, that the termination of the contract of employment "takes effect" at the date of dismissal, since on that date the employee's rights under the contract are transformed from the right to be employed into a right to damages. This view receives support from the remarks of Winn L.J. in Marriott v. Oxford and District Co-operative Society Ltd. (No. 2)  1 Q.B. 186, 193. After pointing out that the statutory definition of "the relevant date" for redundancy payment purposes (now section 90 (1) (a) and (b) of the Act) is the date of the expiry of the notice or (if there is no notice) the date on which the termination takes effect, Winn L.J. said:
"That is consistent with the whole concept that a contract of employment for the purposes of this statute is brought to an end, i.e., it is terminated, when it is so broken that no further full performance of its terms will occur." (our emphasis)
This indicates that the date of the final termination of the contract is not necessarily "the effective date of termination" or "the relevant date": if, as in the case of repudiation, further full performance becomes impossible, that will be the relevant date.
(4) We consider it a matter of the greatest importance that there should be no doubt or uncertainty as to the date which is the "effective date of termination." An employee's rights either to complain of unfair dismissal or to claim redundancy are dependent upon his taking proceedings within three months of the effective date of termination (or in the case of redundancy payments "the relevant date"). These time limits are rigorously enforced. If the identification of the effective date of termination depends upon the subtle legalities of the law of repudiation and acceptance of repudiation, the ordinary employee will be unable to understand the position. The Dedman rule fixed the effective date of termination at what most employees would understand to be the date of termination, i.e. the date on which he ceases to attend his place of employment."
"...in our judgment the decision reached at an internal appeal is part of what happened between the parties for the purposes of establishing the [effective date of termination]; and in the (no doubt rare) case where the decision at an internal appeal results in a change of the date on which the employment is terminated, that decision is to be taken into account in determining the [effective date of termination]."