Continuity of Employment

The Court of Appeal has handed down its decision in Bower v Stevens (& ors.), a curious case about continuity of employment in solicitors' firms.

Mrs Stevens was employed by Hughes Hooker, a solicitors' firm which "attracted a degree of notoriety", where the controlling partner was "a man well practised in flaunting the norms of professional behaviour and personal integrity in the pursuit of financial gain."

Mr Bower (who was not involved in any wrongdoing) was a salaried partner in the firm. The controlling partner did not pay Mr Bower's wages etc. for some time. By the end of 2000, there were just the two partners left who resolved to dissolve the firm on 31st March 20001. In early March, the controlling partner was struck off the roll of solicitors. By operation of law, this meant that Mr Bower became sole principal with just three weeks to go before the firm closed.

Some of the employees brought a claim against the two partners for unauthorised deductions, wrongful dismissal, unfair dismissal and redundancy payments. The controlling partner took no part (he was in and out of bankruptcy). Mr Bower argued (before the EAT and Court of Appeal) that the change in partnership from two to one partners meant that continuity of employment was broken.

Under s218(5) of the Employment Rights Act 1996, continuity of employment is deemed to be preserved when there is a change of partners. The Court of Appeal held, resolving inconsistent EAT authorities, that this includes the situation where two partners become one - which must achieve the purpose of the section - even though it did not rest easily with the natural wording of s218(5) which required a need for partners (plural) after the change to trigger the deemed continuity of employment.

Thus the employees had continuity of employment to claim unfair dismissal, redundancy payments and the longer notice periods.

New EAT Decisions

Haberdashers' Monmouth School v Turner
(Burton P., 8th March 2004)

An unusual case concerning constructive dismissal. Ms Turner had been a teacher for 22 years, on (as everyone believed) a self-employed contract. The school wanted to formalise her position and offered her employment. The contract did not recognise her 22 years' previous service and, after taking legal advice, Ms Turner refused to sign the contract on the basis she had been working under an implied contract of employment for 22 years, and her continuity of employment should be recognised. She resigned, claiming constructive dismissal. The tribunal found (i) she had been an employee for 22 years; and (ii) accordingly the school's refusal to recognise this was a repudiatory breach of contract.

The EAT held that the tribunal's approach was wrong. The correct approach, following classic contract law cases, was to ask whether the school had shown an intention not to be bound by the terms of the contract (which is necessary for a repudiatory breach). Importantly, the fact a party to the contract may make a genuine and honest mistake as to the legal interpretation does not mean it no longer intends to be bound; to the contrary, it may well intend to be bound by the contract but has just made a mistake over what the contract requires. Accordingly the case was remitted.

Sexual Orientation Attack

The much reported attack on the sexual orientation discrimination legislation, brought by Amicius and other unions, was rejected by the High Court yesterday.

Amiucus (and six other major unions) argued that various exemptions in the Employment Equality (Sexual Orientation) Equality Regulations 2002 were incompatible with the obligations imposed on the UK by the EU Equal Treatment Framework Directive 2000 and also conflicted with provisions of the European Convention on Human Rights.

In an extremely long and thorough judgment (apparently the judge had to deal with over 200 pages of skeleton argument and 14 bundles of authorities), Richards J. rejected the unions' arguments and held that the exceptions to the general prohibition on discrimination were lawful. The issues raised are quite fascinating, even extending to an invitation (which the judge refused!) to decide whether extracts from the Bible prohibit homosexuality (paras. 36-38).

The exceptions challenged were (in summary):

* reg 7(2): where being of a particular sexual orientation was a genuine and determining occupational requirement

* reg 7(3): where the employment is for the purpose of an organised religion, and either religious doctrine prohibits a particular sexual orientation, or appointment of the individual would offend the strongly held religious convictions of a significant number of the religion's followers

* reg 20(3): admitting students into religious training, where the religion meets the conditions of reg 7(3)

* reg 25: nothing in the Regulations shall render unlawful anything which prevents or restricts access to a benefit by reference to marital status

I recommend that anyone dealing with the sexual orientation legislation read this decision: it involves detailed consideration of the policy behind the legislation and extensive construction of the various exceptions.

Scott v Inland Revenue

The Court of Appeal has handed down judgment in Scott v Inland Revenue. The case straddles the border on whether it warrants a bulletin, but I have done so as it contains a small number of useful 'soundbites' on diverse points that advocates might want to quote in tribunals.

* disclosure: there is an ongoing duty of disclosure in tribunals (when standard disclosure is ordered). Thus the Inland Revenue ought to have disclosed to the Applicant that it changed its normal retirement date from 60 to 65 after he was dismissed, but before the remedies hearing (paras. 20-21);

* aggravated damages: aggravated damages are separate from awards for injury to feelings, and the two should not be amalgamated (paras. 34-35)

* costs: the fact that an Applicant drops some of his claims (he dropped the named individual Respondents) and failed on one other (an "inconsequential head of claim had failed") is not relevant to the decision whether to award costs. At most, it is relevant to the issue of how much should be awarded (para. 47)

Amendments to EAT rules - consultation

The DTI is consulting on some minor changes to the EAT Rules of Procedure 2001, largely to bring them into line with the proposed ET Rules of Procedure. It is proposed the changes will come into force on 1st October 2004, the same date as the statutory disciplinary and grievance procedures.

The amendments, on which views are sought, are:

• introducing an overriding objective;
• introducing a requirement that the claim and response forms (the new name for the IT1 and IT3) must be lodged with the Notice of Appeal and written reasons for the decision;
• importantly, the time limit for appealing changes from 42 days from the decision being sent to the parties to 42 days from the date of the order - which presumably means the day that the verbal order/decision is given at the tribunal hearing. Thus it is possible that parties will have to draft their Notices of Appeal without having seen the written reasons! There seems to be no provision for an extension of time in these circumstances;
• a formal system of 'permission to appeal' will be introduced. If the judge or registrar thinks the appeal has no reasonable prospect of success, there will be an oral permission to appeal hearing (currently the registrar and then, in turn, the judge, consider the position on paper only - and if permission is not given the appellant must go to the Court of Appeal);
• a provision for temporary restricted reporting orders, while the substantive application is being considered;
• a general re-wording of the costs provisions, to make costs more likely in the event of an amendment or an adjournment caused by a party. It also allows the EAT to summarily assess costs (with no £10,000 cap, as in the ET), take the paying parties financial position into account, make wasted costs orders against representatives, and award costs to litigants in person. Interesting, it does not introduce a right to recover costs, in line with the ET, if the appeal was 'misconceived' (presumably on the legal fiction that no appeal could be misconceived or the judge would never have let it through to a full hearing!). Successful parties will have to continue relying on the argument that pursuing a hopeless appeal amounts to unreasonable conduct.

Responses to the consultation paper are sought by 25th June 2004.

Stress at Work - House of Lords

The House of Lords has, this morning, handed down judgment in Barber v Somerset County Council. This is one of the four co-joined cases heard before the Court of Appeal as Sutherland v Hatton - but was the only one of the four to appeal to the House of Lords.

The majority of the House of Lords, in a 4-1 judgment, allowed the appeal and overturned the Court of Appeal's decision.

Despite that sounding enormously exciting for Claimant / Applicant lawyers, all five judges made it very clear that they believed the Court of Appeal's (restrictive) interpretation of the law relating to stress at work claims to be correct - largely because Mr Baber's legal team accepted it was correct (para. 39). Lord Scott stated that the Court of Appeal had "succinctly and accurately express[ed] the principles that ought to be applied." (para. 5). Lord Walker described, as "a point of great importance", the distinction between an individual believing they suffered from stress at work, and telling their employer that they suffered from stress at work.

The decision was overturned, though, on the facts. The majority (Lords Walker, Bingham, Rodger and Steyn) thought that even though the legal principles enunciated by Hale LJ in the Court of Appeal were correct, the County Court judge was "entitled to form the view" that the Defendant employer was in breach of its duty of care (para. 70). The minority (Lord Scott) thought that - again, although the Court of Appeal's exposition of the law was correct - the trial judge might have reached a different conclusion if he had the benefit of Hale LJ's judgment, and as a matter of policy, the Court of Appeal had been correct in interfering.

Thus, by a 4-1 majority, the County Court judge's finding that Mr Barber could recover damages for stress at work was reinstated.

Interim Employment Order

An interesting decision on the effect of TUPE upon the rare beast of an interim order for continuation of employment.

Under s163 of the TULR(C)A 1992, an employment tribunal can make an interim order for continuation of employment if, in a trade-union dismissal case, the IT1 is lodged within seven days of dismissal and the tribunal considers the case is 'likely' to succeed. The effect of the interim order for continuation of employment is that the employee continues to receive pay and benefits until the full hearing, but is not required to work. Even if s/he ultimately fails at the full merits hearing, s/he gets to keep the money. A similar provision exists in whistleblowing dismissal cases.

In Dowling v Berkely Logistics Ltd., the EAT (Burton P.) held that if a TUPE transfer occurs after an interim order for continuation of employment is made, the employment does not transfer to the transferee. The reasoning is, essentially, that the continuation of employment is a statutory fiction and the individual is not, in reality, an employee immediately before the transfer.

Handbook on Employment Law

You are receiving this Email as a subscriber to Daniel Barnett's Email bulletin list.
I apologise if this Email irritates you: it will not be sent again as a stand-alone Email.

** New edition - March 2004 **
Employment Law Handbook
(Law Society Publishing)
£44.95

Click here for more details

or purchase from Amazon
(free delivery, normally within 24 hours)

Statutory Disciplinary

The final version of the Employment Act (Dispute Resolution) Regulations 2004 have been approved by Parliament. They flesh out the framework statutory disciplinary and grievance procedures in the Employment Act 2002.

I will shortly be producing detailed lecture notes on these, together with a pack of training materials which can be used to train clients. For details, please Email me. I will also be producing a new edition of Managing Dismissals Fairly, to be published in October 2004, containing guidance for solicitors and HR departments on the practical steps to take (and evidence to gather) when dismissing employees.

The new statutory procedures are confirmed as coming into force on 1st October 2004.

LINK to the Regulations: Click here

Rolled up Holiday Pay 2

In my bulletin of 17th March 2004 on rolled-up holiday pay, I published Nick Sidall's offer to make copies of the judgment available on request.

Due to the large number of take-ups, he has asked me to say that the judgment is now available on his Chambers' website, from the link below (direct link).

Rolled up Holiday pay 3

For all those who thought the saga had ended with Marshalls Clay v Caulfield (see bulletin dated 4th August 2003, reproduced below), think again!

An employment tribunal sitting in Leeds, in the case of Robinson-Steele v RF Retail Services Ltd, has decided it does not want to follow the EAT's decision in Marshalls Clay to the effect that rolled-up holiday pay can be lawful. So it has referred the issue directly to the ECJ.

The two questions referred are:

1. Is article 7 of Council Directive 93/104/EC consistent with provisions of national law which allow pay for annual leave to be included in a worker's hourly remuneration and paid as part of remuneration for working time but not paid in respect of a period of leave actually taken by the worker?

2. Does article 7.2 preclude the national tribunal from giving credit to an employer for such payments when it seeks to give to the applicant an effective remedy according to powers contained in the national regulations?

I understand the employer (who wanted the tribunal to follow Marshalls Clay) is considering an appeal.

Counsel for the employer, Nick Siddall from Kings Chambers, is willing to distribute copies of the decision. He can be contacted on nsiddall@kingschambers.com

Implied Terms - Financial Advice to Employees

Judgment was handed down yesterday by the Court of Appeal in Crossley v Faithful & Gould Holdings Ltd.

Mr Crossley was a senior executive who qualified for benefits under a long-term disability scheme. He decided to retire from the company on health grounds, not knowing that he had to remain employed to receive the LTDS benefits. His employer assisted him with the medical retirement process, including drafting letters for him, but failed to advise him that medical retirement would mean he lost the (substantial) benefits under the LTDS scheme and the insurer would be entitled to stop payment (which it did).

The High Court dismissed his claim, finding there was no implied term that the employer should warn him of the effect of resignation upon his LTDS.

The Court of Appeal dismissed the appeal (and, therefore, Mr Crossley's claim). Following the House of Lords decision in Scally v Southern Health & Social Services Board, and the more recent Hagen v ICI Chemicals, the Court held that there is no general obligation on an employer to exercise reasonable care for the employee's economic well-being save in very specific circumstances (as set out in Scally). The Court thought the decisive point was that Mr Crossley had access to his own financial advisor who could have explained the effect of resignation to him, had he asked.

ACAS Guide to Internet and Email Policies

ACAS has published an update guide to Internet and Email policies.

It sets out why policies are desirable, what a policy should cover, management issues arising from a policy and explains the relevant legal considerations.

Delay by Employment Tribunals

In a series of four conjoined appeals (the lead case being Kwamin v Abbey National plc), the EAT has handed down guidance on what delays are, and are not, acceptable between a case finishing and the tribunal issuing its decision. If there is excessive delay then this, without more, will give rise to grounds for appeal.

Burton P. held that:

• a reserved judgment should be sent to the parties within 3 1/2 months of the closing speeches (or written submissions, if later). This is analogous to the 3 month period in the High Court, with an extra 1/2 month to reflect the time taken for the chairman to consult the wing members.(para 9)
• in lengthy cases, scheduled to last more than few days, the administrative arrangements should include a one- or two- day slot for the chairman to write the judgment, after the case has finished. The chairman should not be catapulted straight into another case (para 10)
• however, the fact that a judgment takes more than 3.5 months to promulgate is not a reason to set the judgment aside - for a re-hearing would merely cause further delays for the parties, with the risk of witnesses memories fading further (para 12)
• the issue for the appellate court is whether the party who has lost has been deprived of a fair trial by virtue of the delay in judgment (para 13)
• the losing party must demonstrate one or more errors or omissions in the decision which, whilst not necessarily amounting to perversity in their own right, are sufficient to show the decision is unsafe by virtue of the delay (para 15.1)
• the appeal court should also consider whether the whole judgment must be set aside, or just parts of the judgment (para. 15.3)
• a distinction should be drawn between cases where the decision was taken and a first draft produced shortly after the hearing, but there was then long delay in tidying up that draft, and cases where no "all but final" draft of the decision produced within a short time of the hearing (para 15.6)

After setting out the general principles, the EAT analysed the four cases at length. They are useful reading for anybody who wishes to know which side of the line their cases fall on.

Temp Workers get Employment Rights

The Court of Appeal has ruled that temp workers are entitled to employment rights against the 'end-user' company.

Previously, temps engaged through an agency have been unable to claim unfair dismissal against the person they work for. In DACAS v BROOK STREET BUREAU (5th March 2004), the Court of Appeal overturned this long-standing position and stated that once the temp had been working for a year, they obtained the right to claim unfair dismissal against the 'end-user' company.

Daniel Barnett, barrister at 1 Temple Gardens, comments: "This rectifies a long-standing hole in employment rights. Previously, employers could effectively buy protection from unfair dismissal claims by paying the premium of agency fees to an employment agency. The law worked under the fiction that since there was no direct contract between 'employer' and 'employee', there was no contract of employment. If there was no contract of employment, the worker could not claim unfair dismissal."

He adds, "This has the knock on effect that companys are now liable if temps injure anybody, or cause damage to anything, in the course of their employment. One of the main advantages of using agency workers have now gone, and many employers will review their use of expensive agency workers. This is likely to cause a downturn in the employment agency industry."

NOTES FOR EDITORS

1. Mrs Dacas had been supplied to Wandsworth Council, through the Brook Street Bureau, as a cleaner. She had worked as a 'temp' for four years before Wandsworth dismissed her. She lost her claims against Wandsworth and Brook Street in the Employment Tribunal, on the grounds she was not an employee of either organisation. The Employment Appeal Tribunal held she was an employee of Brook Street, but the Court of Appeal has overturned that and said she was an employee of Wandsworth.

2. Lord Justice Sedley commented in the judgment, "The conclusion of the Employment Tribunal that Mrs Dacas was employed by nobody is simply not credible. There has to be something wrong with it."

3. Lord Justice Mummery stated "What difference does the presence of the employment agency really make to the status of Mrs Dacas? ... practical reality and common sense [show] that the Applicant works [for Wandsworth] under an implied contract"

4. In order to obtain unfair dismissal rights, in common with all employees, the temp will have to have worked for the end-user company for one year.

5. The Court of Appeal's decision is available at

Brook Street v Dacas

Status of Agency Workers

The Court of Appeal has overturned the EAT's decision in Dacas v Brook Street Bureau (for which, see my bulletin of 26/3/03, below). By a majority, they give a clear steer that the end-user in an 'temp' worker scenario is, for unfair dismissal purposes, the employer.

Mrs Dacas was a cleaner working for Wandsworth Council. She was not employed directly by the Council; rather, she was engaged through the Brook Street Bureau as a 'temp'. She worked for Wandsworth for four years - more than long enough to give her employment rights if she were an employee.

The employment tribunal held that she was not an employee of Wandsworth (because there was no direct contract between them, and thus no contract of employment). Nor was she an employee of Brook Street because, although a contract existed, it lacked day-to-day control over her activities and therefore could not be said to be her 'employer'. Accordingly her claims for unfair dismissal failed against both potential employers.

She appealed against the finding that she was not employed by Brook Street Bureau (but did not appeal the finding against Wandsworth). The Employment Appeal Tribunal upheld her appeal, on the grounds that paying wages, having the right to terminate and having the right to exercise disciplinary functions was sufficient 'control' to say that Brook Street Bureau was her employer. This was a controversial decision at the time (see my comments below in the 26/3/03 bulletin).

The Court of Appeal has overturned the EAT's decision, holding that Brook Street was not the employer within the meaning of the Employment Rights Act 1996.

Giving the leading judgment, Mummery LJ makes it plain that this judgment is intended to set the benchmark for future cases concerning agency workers (paras. 6-7). He stated that the mere fact the contract recorded that Mrs Dacas was not the employee of either Brook Street or Wandsworth could not be determinative, and that (echoing Franks v Reuters) tribunals should always investigate whether an implied contract of employment has arisen between the employee and the end-user (ie Wandsworth). In a crucial passage, which seems to go further that Franks v Reuters by suggesting that the end-user might be the employer as the norm, rather than as an exception, he states:

"...the fact and degree of control over the work done by Mrs Dacas at West Drive over the years is crucial. The Council in fact exercised the relevant control over her work and over her. As for mutuality of obligation, (a) the Council was under an obligation to pay for the work that she did for it and she received payment in respect of such work from Brook Street, and (b) Mrs Dacas, while at West Drive, was under an obligation to do what she was told and to attend punctually at stated times. As for dismissal, it was the Council which was entitled to take and in fact took the initiative in bringing to an end work done by her at West Drive. But for the Council’s action she would have continued to work there as previously. It is true that the obligations and the power to dismiss were not contained in an express contract between Mrs Dacas and the Council. The fact that the obligations were contained in express contracts made between Mrs Dacas and Brook Street and between Brook Street and the Council does not prevent them from being read across the triangular arrangements into an implied contract and taking effect as implied mutual obligations as between Mrs Dacas and the Council." (para 53)


However, the Court of Appeal could not substitute a finding that Wandsworth was the employer for the technical reason that Mrs Dacas had only appealed the finding vis a vis Brook Street Bureau, not vis a vis Wandsworth.

Sedley LJ commented "The conclusion of the Employment Tribunal that Mrs Dacas was employed by nobody is simply not credible. There has to be something wrong with it." (para 71). In other words, he was saying that employment tribunals must find that someone is the employer in these agency situations - and went on to say that it would be the end-user. Importantly, he said that one year's employment (ie enough time to accrue unfair dismissal rights) was sufficient to mean an implied contract of employment had arisen (para. 77) - contrast this with the five years service which the Court of Appeal said could give rise to an implied contract in Franks v Reuters. This leaves the position uncertain for cases where there is no qualifying period of employment (eg whistleblowing).

Munby J., whilst agreeing with the other two judges that Brook Street Bureau was not the employer, disagreed with the majority's decision that Wandsworth would be the employer. He considered the lack of mutuality of obligation between the parties fatal, and thought the pre- Franks law, namely that an agency worker is employed by neither agency nor end-user, should stand.

for relevant emplaw commentary, go to
Employment Agencies / a general note
(professional versions only)

Agency Workers can be 'Employees'
26th March 2003

The Employment Appeal Tribunal's decision in Dacas v Brook Street Bureau (unreported, EAT/492/02, 11th December 2002) has been placed on the EAT website.

Mrs Dacas had been working as a temp cleaner, via the Brook Street Bureau, for Wandsworth Council for 6 years. Her contract was terminated summarily. The tribunal found that she was employed by neither Brook Street nor Wandsworth. Whilst she accepted the conclusion as against Wandsworth, Mrs Dacas appealed against the finding that she was not an employee of Brook Street.

Burton J.’s decision turned heavily on the precise findings by the tribunal. The tribunal had found that there was “considerable control” exercised over Mrs Dacas by Brook Street, in the sense that it paid her wages, was entitled to discipline her / terminate her services. It held, however, that day-to-day control was exercised over her not by Brook Steet but by Wandsworth.

It went on to hold that, because of a clear statement in the contract that Mrs Dacas was not an employee of the agency, the agreement between the parties prevented her being an employee. Whilst it is not entirely clear from the EAT decision, it seems that the tribunal also relied on the lack of day-to-day control by Brook Street as pointing against an employment relationship.

The EAT overturned the tribunal’s decision. It held that because of the words in the tribunal’s decision that the agency exercised “considerable control”, then the Ready Mixed Concrete test (see above) was met. Since there was plainly mutuality of obligation, and since it was impossible to say that Mrs Dacas was in business on her own account, the only conclusion that could be drawn was that she was an employee of Brook Street. Although the contract provided that she was not an employee, it was settled law that a label would only be determinative when the other pointers were inconclusive. Here, according to the EAT, the other pointers clearly showed that Mrs Dacsas was an employee of the agency.

The result of this decision is in stark contrast to all the previous cases on agency workers. Dacas v Brook Street does not purport to overrule them and – indeed – does not expressly consider the recent authorities such as Hanbury & Brook Street v EDS and Hewlett Packard v O’Murphy. Whilst the EAT may have been straining to achieve a fair result, its legal reasoning is open to further analysis. In particular:

1. the EAT does not appear to have considered whether the need for control is actually a need for control over day to day activities (which did not exist in Dacas);

2. whilst the EAT asserts that the Ready Mixed Concrete test is met, it does not appear to have considered stage 3 of that test, i.e. whether there are provisions of the contract inconsistent with it being a contract of service.

Despite my comments, the ramifications of this decision are significant. Previously, tribunals have been prohibited by authority from finding that an agency worker is an employee (of anybody). Now the path is open for them to find that the worker is the employee of the temp agency, irrespective of any denials to that effect in the contract between worker and agency. This may have considerable impact on potential liabilities for agencies - they may find themselves liable for any actual (or even constructive) dismissals by their client companies, over which they have no control. In the absence of appropriate indemnities in their contracts with their client companies, temp agencies could find themselves unknowingly liable for very significant sums of money.

New ACAS Website

ACAS have re-vamped their website.

It is now much more user friendly (and that dreadful blue background has gone). They have a new 'A-Z of Work' section, which has some excellent advice leaflets on all aspects of the employment relationship.

New EAT Decision

Dennis Wise v Leicester City Football Club
(24th February 2004, HHJ Peter Clark)

Dennis Wise was dismissed from Leicester City FC following a fight with a teammate. The original disciplinary hearing was unfair. At his first-tier appeal, which was a full rehearing chaired by a Court of Appeal judge, he was reinstated. However, the second-tier appeal (the appeal having now been brought by the football club), which was a review, overturned the first-tier appeal and confirmed the original dismissal decision.

The employment tribunal held the dismissal was fair, because the first-tier appeal (being a re-hearing) cured the procedural defects of the original decision. However, the EAT disagreed and substituted a finding of unfair dismissal. They held that the first-tier appeal, since it did not uphold the original decision, was not capable of curing its procedural defects. The second-tier appeal, being a review hearing only, was likewise not capable of curing the procedural defects of the original hearing (even though it did uphold the original decision). Accordingly the dismissal was unfair.

Holiday pay when sick

Inland Revenue v Ainsworth
(4th February 2004, Burton P.)

Readers will be aware of the (some would say, bizarre) case of Kigass Aero Components v Brown [2002] IRLR 312, in which the EAT held that workers on long-term sick leave are entitled to four weeks' paid holiday under the Working Time Regulations 1998, even if they have exhausted all their entitlement to contractual pay.

In Inland Revenue v Ainsworth, a different division of the EAT was invited to overturn Kigass (and similar cases). Burton P. declined to overturn them, on the basis that it was inappropriate for the EAT to overturn one of its own recent decisions. However, he made it clear he thought there were complex arguments on both sides and gave permission to proceed to the Court of Appeal. I understand the Court of Appeal will be dealing with this point relatively quickly.

Effective date of termination

[Thanks to Justina Togher of Royds RDW, which acted for the Appellant in this case, for sending me details of this decision]

Judgment has been handed down today in Fitzgerald v University of Kent at Canterbury. This is an important Court of Appeal decision concerning the effective date of termination ('EDT') in unfair dismissal claims.

The issue was whether the EDT, which by law sets time running for lodging an originating application in the employment tribunal, is to be objectively determined or can be fixed by agreement between employer and employee. On the facts, the tribunal found the parties had agreed an EDT of 28th February 2001, even though the agreement did not occur until 2nd March. If the EDT was truly 28th February, the claim was out of time. If the true EDT was 2nd March, the claim was presented within time.

In a very readable judgment, Sedley LJ holds that it is not open to the parties to agree to vary the plain wording of the Employment Rights Act. This is both on policy grounds (to prevent the parties agreeing an incorrect EDT to circumvent the one year qualifying period or the upper qualifying age) and on statutory grounds, since it is an attempt to contract out of the Act and is therefore void under ERA s203.

This decision resolves tension between inconsistent EAT decisions, and provides welcome certainty on a difficult point of law.