Summary Dismissal - Calculating the Effective Date of Termination
A recent case highlights that where an employee is summarily dismissed and then subsequently given notice, the effective date of termination (EDT) is the date of the summary dismissal.
The EDT does not move to the end of the notice period, where an employer specifies a date.
The Case (Cosmeceuticals Ltd v Parkin)
The Claimant, Ms Parkin, was employed by Cosmeceuticals as their managing director. Concerns had been raised about Ms Parkin's performance by the Chair which appear to emanate in part, from her practice of working from home one day per week. Additionally, Ms Parkin was having to combine her role as Managing Director with difficult personal circumstances.
At the relevant time, it was agreed that Ms Parkin would take a two month paid sabbatical to enable her to focus on her family circumstances. At no time however was she informed that the taking of the sabbatical might endanger her role in some way. On her return on 1 September 2015, the Chairman informed her that she could not resume her role as managing director and she was put on garden leave with immediate effect.
Subsequently, the Respondent wrote to Ms Parkin on the 29 September 2015 to inform her that she was being given notice of termination of her employment, which they stated would come to an end on 23 October 2015. The Claimant brought a claim of unfair dismissal.
The Employment Tribunal (ET) found that the EDT was 23 October 2015 and therefore that the Claimant's claim of unfair dismissal was made in time. The Respondent appealed to the Employment Appeal Tribunal (EAT), contending that the EDT was 1 September 2015 and therefore that the claim was out of time.
The EAT Decision
The EAT allowed the appeal, holding that the EDT was 1 September 2015. The EDT is a statutory concept meaning that it cannot be varied by agreement by the parties. It was found that at the point at which the Claimant was told that her employment was at an end on 1 September 2015, this amounted to a summary dismissal. The letter informing the Claimant that her employment would be terminate with effect on 23 October 2015 (following the expiry of her notice period) was invalid.
Therefore, 1 September 2015 was the relevant date when calculating if the claim of unfair dismissal had been made in time. The case will now be remitted to the ET to determine whether it had been reasonably practicable for the Claimant to lodge her claim in time or, if not, whether she had lodged it within a reasonable period given the circumstances.
Best Practice
Employers are reminded that the EDT cannot be modified by agreement between themselves and their employees where any conduct by an employer amounts to a summary dismissal. After an employee has been summarily dismissed, they have a 3 month time limit from the EDT in which to lodge a claim of unfair dismissal at the employment tribunal.
Employers must ensure that they have clear processes and policies in place when taking the decision to dismiss an employee. In addition, employers must conduct a reasonable and thorough investigation and follow a fair procedure.
This case serves as a reminder that the language used by an employer is crucial when communicating with employees, especially around dismissal. Therefore, care should be taken by employers to use correct wording when conducting discussions and in all written correspondence, to ensure that the position is clear for all parties.