The EDT is an important date for calculating whether an employee has enough continuous employment to bring a particular claim, such as unfair dismissal and also whether their claim has been presented to a tribunal in time.

In most cases, the employee will work their notice period and the date will correspond with their last date at work. Where the employer makes it clear that an employee is dismissed without notice and paid in lieu of notice (in line with the contract or not), the EDT will be the actual date of termination. If, however, the contract continues, albeit the employee stays away from work, the EDT will be the date upon which the contract comes to an end in accordance with the notice.

In Radecki v Kirklees Metropolitan Borough Council (KMBC), a teacher was suspended with pay from his teaching job as a result of concerns about his skills. A disciplinary hearing was postponed while a compromise agreement was negotiated. An unsigned draft copy of the agreement, headed 'without prejudice' and 'subject to contract', stated that his employment would "terminate by mutual consent on 31 October". KMBC removed the employee from the payroll on this date even though the agreement was not finalised.

Eventually, on 22 February, the employee informed KMBC that he was unhappy with the terms of the compromise agreement. KMBC then wrote to him on 5 March, asserting that his employment had ended on 31 October. Mr Radecki challenged this. The tribunal found that the EDT was 31 October so the claim was out of time.

However, the EAT overturned the tribunal decision on the basis that it was clear that the draft agreement was subject to contract and could not be relied upon. Nor was there a freestanding agreement that Mr Radecki's employment ended when he was removed from payroll. His non-attendance at work, failure to have a disciplinary meeting and non-receipt of pay were all consistent with his being on suspension and in the course of negotiating a settlement. The letter of 5 March was the first 'sufficiently unequivocal statement' that could be regarded as terminating the employment relationship. His claim was therefore presented in time.

Employers need to keep an eye on the progress of without prejudice negotiations and not let matters drift.