No, held the EAT in Rabess v London Fire and Emergency Planning Authority.
The Claimant was dismissed for gross misconduct on 24 August 2012. Following an internal appeal, the finding of gross misconduct was substituted for misconduct. The Claimant was already on a final written warning so the penalty remained dismissal, but the decision maker found he was entitled to six weeks payment in lieu of notice (PILON). The Employment Judge found that the effective date of termination (EDT) was 24 August 2012 and that the claim for unfair dismissal was out of time.
On appeal, the Claimant relied in particular on the absence of a contractual entitlement to PILON, which rendered it a breach of contract to dismiss the Claimant without notice unless there was gross misconduct.
HHJ Richardson held that because the EDT was a statutory construction what was important was what actually happened, not what ought to have happened contractually. He distinguished Hawes & Curtis Ltd v Arfan on the basis that in Hawes the employer had expressly altered the date on which dismissal took effect following the internal appeal.