Employers who decide to end an employee's employment should ensure that decision is clearly communicated to the employee. Although non-payment of salary may be enough to demonstrate a clear intention to dismiss, employers would be well advised to expressly confirm the termination date in writing.
The precise termination date will determine the time limit for the employee to bring tribunal claims and may also affect whether an employee has sufficient service to claim unfair dismissal.
An employer had proposed a termination date in a draft compromise agreement being negotiated with a suspended employee. No agreement had been reached by that date but the employer did not pay the employee from that date and informed the employee he was being removed from the payroll.
The Court of Appeal accepted that there was no agreed termination date, but that the employer had clearly evinced an intention to dismiss by deciding to stop salary payments, a decision which the employee knew about within the fortnight. It rejected the employee's claim that he continued to be employed until some months later when he received a letter confirming the termination.
A minority of the Court did not agree that removing the employee from payroll was sufficiently clear, so it is best practice to communicate termination as clearly as possible, particularly if the employee is already suspended from active duty. Otherwise, an employer could find that the employment has continued, extending the time for the employee to claim unfair dismissal and incurring liability for substantial arrears of salary. (Kirklees Metropolitan Council v Radecki, CA)