Employees still sometimes take the mistaken view that proceedings in the employment tribunal should not be commenced until the conclusion of any internal appeal process. This is misconceived, and, as in the case of Rabess v London Fire and Emergency Planning Authority, will result in employees being out of time to submit an employment tribunal claim.
Employees generally have three months from the 'effective date of termination' (EDT) to bring a claim in the employment tribunal (unless this is extended by participation in Acas early conciliation). The EDT for the purpose of the tribunal deadline is a statutory concept that depends on whether notice is given to terminate the employment. If it is, the EDT is the date on which the notice expires. If it isn’t, the EDT is the date on which the termination 'takes effect'.
In the Rabess case, Mr Rabess was dismissed without notice for gross misconduct on 24 August 2012. He appealed this decision and the appeal was heard on 9 January 2013. On appeal, the charges were reduced to misconduct but his dismissal was upheld since he was already on a final written warning. However, since there was no longer any gross misconduct the dismissal should have been on notice. Instead, Mr Rabess received a payment in lieu of notice. Nothing done at the appeal hearing resulted in the EDT being altered from 24 August 2012. Because of this, the deadline for him to submit an unfair dismissal claim was still 23 November 2012. In the event, his claim was not presented until January 2013. His claim was dismissed as being out of time.
It will be very rare for a disciplinary process to put a dismissal on hold pending the outcome of any appeal. Only if the contract or disciplinary procedure explicitly provides for this, will it be the case. Further, if an appeal upholds a dismissal, it is unusual for the appeal decision itself to result in any change to the EDT. The date of dismissal is what it is.
This case also makes clear that for the EDT, it is important to look at what actually happened, not what ought to have happened. The appeal concluded that Mr Rabess should have been given six weeks’ notice, which would have extended the deadline and resulted in him presenting his employment tribunal claim on time. Instead, he was paid in lieu of notice (even though there was no PILON clause in his contract) and the EDT remained as 24 August 2012.