Friday 1 June 2012

Effective Date of Termination

[Thanks to Angharad Davies of Dere Street Barristers for preparing this case summary]

Is a tribunal entitled to take into account an otherwise unsuccessful internal appeal that purports to change the effective date of termination (EDT)?

Yes,says the EAT in Hawes & Curtis v Arfan & Mirza.

This was a decision arising out of the Claimants being summarily dismissed on 5 October 2010. They appealed under the internal disciplinary procedure. The dismissal was upheld but they were told, by letter, that their EDT would be the date of the appeal decision (4 November 2010). They were paid until this date. The tribunal held that the EDT was 4 November.

Claim forms were lodged citing the EDT as 4 November, this was challenged by the Respondent. By a majority decision the tribunal held that the EDT was 4 November. The Respondent appealed, arguing that the EDT for the purposes of s 97(1) ERA 1996 is to be determined objectively and crystallised at the date when the summary dismissal is communicated. It cannot be varied by appeal. The Claimant placed reliance on the decision of Gisda Cyf v Barratt [2010] ICR 1475 in arguing the variation of the employer's decision at appeal was determinative.

The EAT dismissed the appeal: the tribunal found that this was a relatively rare case where the Respondent intended to change, and did change, the EDT. Nonetheless, the starting point in a dismissal without notice is the 'date on which the termination took effect'. The provision of an internal appeal is integral to the protection of employment rights which underlies the purpose of s 97(1) and can be considered if relevant to proceedings.

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