The effective date of termination for a summary dismissal is the date on which the employee is told that their employment has ended, even if the employer later gives written notice
Ms Parkin was employed as the Managing Director of Cosmeceuticals Limited. From early on in her employment, there were concerns about her lack of visibility in the office, partly because she worked from home one day a week, because of difficult personal circumstances. It was agreed that she would take a sabbatical of two months to enable her to focus on these personal circumstances. During her sabbatical, concerns about her performance increased. On her return, at a meeting on 1 September 2015, she was told by the Chairman that she could not return as Managing Director. A “clumsy attempt” was made to consider possible alternative roles, none of which would be comparable with her previous position. It was left that there would be a further meeting. The tribunal found that, from 1 September, Ms Parkin had lost all trust and confidence in the Chairman (who had conducted the meeting). As from 4 September, she was put on garden leave. Without prejudice correspondence followed, but no agreement was reached. On 29 September, the Chairman wrote to her to inform her that (for the purposes of clarity) she was now being given notice of termination of her employment, which would come to an end on 23 October.
Ms Parkin brought a claim of unfair dismissal. The pleadings of both parties referred to the termination date as having been 23 October 2015. Had this been the case, Ms Parkin’s claim would have been submitted on time. However, the tribunal raised the possibility that the dismissal date had in fact been 1 September (when she was first told that she could not return as Managing Director). If this were the correct date, Ms Parkin’s dismissal would have been presented out of time.
The tribunal found that, on 1 September, when the Chairman told Ms Parkin that she could no longer hold the position of Managing Director, there was a clear communication of dismissal: the Chairman was telling her that her contract as Managing Director was at an end. This was a dismissal by conduct. However, the tribunal also found that the communication of the dismissal was not the same as the effective date of termination, and that the date of termination was 23 October 2015.
Cosmeceuticals appealed. It argued that the ET made an unambiguous finding that Ms Parkin was dismissed on 1 September, and that the ET should have held that this was a summary dismissal. There had been no finding that the Chairman had communicated that the dismissal was on notice: the tribunal only found that notice was subsequently served on 29 September. As her employment had summarily terminated on 1 September, and therefore, according to Cosmeceuticals, Ms Parkin could not subsequently have been given notice.
The EAT upheld the appeal. There had been a clear communication to Ms Parkin, on 1 September, that her contract of employment was being brought to an end. This was a summary dismissal, and 1 September was therefore the effective date of termination, and the date to be used in determining whether the claim had been brought out of time.
What does this mean for employers?
Employers should bear in mind that, if an employer unilaterally imposes different terms of employment, effectively withdrawing the old contract, this will amount to a dismissal (potentially triggering an unfair dismissal claim), and the dismissal will be effective on the date on which it is communicated to the employee.