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Despite internal appeal decision, effective date of termination remained the same

The EAT’s decision in Rabess v London Fire and Emergency Planning Authority provides a good example of how the law is applied when deciding the effective date of termination in an unfair dismissal claim where the circumstances surrounding the dismissal are changed as a result of an appeal.

The Law: S.97 of the Employment Rights Act 1996, ‘Effective date of termination’ (EDT), differentiates between contracts terminated by notice and those terminated without notice. In identifying the EDT, with the former, the date when the notice expired has to be determined, whereas with the latter, i.e. ‘termination without notice’ the search is for the date on which the termination took effect.

Rabess was summarily dismissed for gross misconduct on 24 August 2012. Following an appeal, the finding of gross misconduct was reduced to misconduct, but the decision to dismiss was upheld because Rabess already had a ‘live’ final written warning on record. The employer confirmed that did not change the actual decision to dismiss on 24 August 2012 and that would be Rabess’ last day of service. However, Rabess would be paid six weeks’ pay in lieu of the notice (PILON) he would have received if the original decision to dismiss had been with notice.

An employment tribunal dismissed Rabess’ unfair dismissal claim because it had not been presented within three months of the EDT. Even though Rabess had been paid six weeks PILON, it remained the case that the termination had been ‘without notice’, because the PILON represented damages for the notice he should have received. Therefore, the EDT remained as 24 August 2012. The claim should have been presented by 23 November 2012, but it was not lodged until 3 January 2013 and the time limit could not be extended because it was reasonably practicable for the claim to have been brought in time. Rabess appealed arguing that the EDT had moved forward by six weeks because of the appeal decision to pay six weeks’ notice.

The EAT upheld the tribunal’s decision. Where an appeal decision affects the overall duration of employment, then that impacts on the EDT. But this case was different. Looking at the evidence:  Rabess’ appeal against dismissal was rejected, he was told that the original decision to dismiss stood, it was also made very clear to him that his last day of service was to remain as 24 August 2012 and the fact that he received damages to compensate for the notice period he should have received did not change the EDT.

Content Note

The aim is to provide summary information and comment on the subject areas covered. In particular, where employment tribunal and appellate court cases are reported, the information does not set out full details of all the facts, the legal arguments presented by the parties and the judgments made in every aspect of the case. Click on the links provided to access full details. If no link is provided contact us for further information. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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