Employee knew employment was ended when he stopped receiving pay

In Kirklees Metropolitan Council v Radecki, the Council and Mr Radecki tried to negotiate a compromise agreement to compensate him for termination of employment as from 31 October 2006. He never worked from that date, nor did he receive any payment. The negotiations failed. The Council wrote to Mr Radecki confirming that his employment had terminated on 31 October 2006. On 7 March 2007, Mr Radecki presented a claim for unfair dismissal. An employment judge held there had been a consensual termination on 31 October 2006 and the claim was out of time as it should have been presented by 30 January 2007.

The EAT allowed Mr Radecki’s appeal, holding that there was no consensual agreement to termination on 31 October 2006. The negotiations over the compromise agreement were “without prejudice” and the termination date of  31 October 2006 under negotiation was subject to the compromise agreement being concluded. But it never was. The only sufficiently unequivocal statement terminating the contract was the Council’s letter of 5 March 2007. That was the effective date of termination (“EDT”) and the claim was therefore in time.

The Court of Appeal upheld the Council’s appeal. While the employment judge had been wrong in deciding that there had been a consensual termination to arrive at the EDT, the EAT was also wrong in its interpretation of the facts. The position was quite clear. The Council brought Mr Radecki’s employment to an end by ceasing to pay his salary from 31 October 2006. The was the last time any activity under the contract was performed.  The Council had clearly indicated that this was what they would do and Mr Radecki knew that they had done so when the payments ceased to arrive in his bank account. The EDT was 31 October 2006 and the claim was out of time.