When is The Date of Termination after an Unsuccessful Appeal?

According to Employment Law in the UK, the effective date of termination or EDT, is a statutory construct, which helps establish the end of the period of continuous employment for an employee.

Furthermore, EDT impacts time limits for making an Employment Tribunal claim. After the EDT is confirmed, an employee can request a written statement from the employer, containing the probable reasons for the dismissal.

What Does the Law Say?

The statutory construct of Effective Date of Termination or EDT is defined in ERA 1996 s.97.

In concept, the EDT is the date on which the contract of employment of an employee is effectively considered as terminated.

Therefore, the EDT helps confirm the end of the period of continuous employment. Furthermore, the redundancy law, which is equivalent to the EDT, is known as “the relevant date” (specified under ERA 1996 s.145, it uses similar wording to ERA 1996 s.97).

Given the fact that the EDT is a statutory construct, which establishes the date upon which the Employment Tribunal objectively assess the series of events that have actually occurred between the parties over time, and not what they may agree upon as having happened (as in the case of Fitzgerald v University of Kent at Canterbury CA [2004] ICR 737.)

What is the Relevance of EDT?

First, the EDT helps establish the actual termination of the period of continuous employment. Therefore, it is relevant in deciding whether an employee satisfies the required qualifying period.

Having said that, the EDT also impacts the total amount of compensation for redundancy pay, after the unfair dismissal claim is successful, and the calculation of a week’s pay.

But most importantly, the EDT affects the time limits, as the calculation of specific time period for making many claims depends upon the information of the last working date.

Even in the context of gross misconduct and unfair dismissal, the EDT plays an important part, as evident in the case of Lupetti v Wrens Old House Ltd [1984] ICR 348.

In this case, the EDT helped establish that the dismissal time actually runs from the date on which the contract of employment terminates and not the date when the notice for dismissal was given.

Subsequently, once the EDT is confirmed, an employee can request the employer for a written statement citing reasons for their dismissal and also bring a tribunal claim before the EDT but after the issuance of the dismissal notice.

What Will Be The EDT if The Employee was Dismissed “With Notice”?

In case, an employee receives a notice of dismissal, the EDT is when the notice expires (as specified under ERA 1996 s.97(1)(a).) Therefore, the aforementioned employee will need to understand the notice given (oral or written) to determine this date.

Furthermore, the employee must treat the notice as a reasonable statement of his or her understanding of the facts, which are known to them, and not just another piece of technical jargon.

Additionally, if there is any ambiguity relating to the notice, it should be construed in the employee’s favour (this is called the contra proferentem rule as highlighted in the case of Chapman v Letheby [1981] IRLR 440.)

Finally, it is completely irrelevant to the EDT, whether the employee is required to work during the period specified under the notice – the EDT will remain to be when notice expires (as highlighted in the case of Adams v GKN Sankey Ltd [1980] IRLR 416, and Wedgewood v Minstergate Hull Ltd UKEAT/0137/10/DA)

What Will Be The EDT if the Employee is Dismissed “Without Notice”

In situations wherein an employee is dismissed without any prior notice by their employer, the EDT is considered to be when termination takes effect (as specified under the ERA 1996 s.97(1)(b)).

Similarly, if an employee is working on either fixed term or limited term employment contract, and the contract is not renewed, the EDT is when the term expires (as specified under the ERA 1996 s.97(1)(c)).

Here, the Tribunal considers the dismissal to have been made at the precise moment it is communicated to the employee, and it is irrelevant to the EDT whether the dismissal is a unfair dismissal (highlighted in the case of Brown v Southall and Knight [1980] IRLR 130.)

Similarly, an employee cannot alter the statutory construct of EDT, by choosing to reject a summary dismissal and arguing instead that the EDT amounts to a repudiatory breach, which was elected to keep the contract alive (this was highlighted in the case of Cort (Robert) & Son Ltd v Charman EAT [1981] ICR 816, and Duniec v Travis Perkins Trading Co Ltd UKEAT/0482/13).

In these cases, however, the EAT made clear that this approach is not applicable to the EDT.

When is The Date Of Termination After An Unsuccessful Appeal?

According to the ERA 1996 s.97(1), there is no apparent distinction as to whether the contract of employment is terminated by the employee or the employer.

Subsequently, it is always a question of fact whether any conduct amounts to a summary dismissal or not.  

On the other hand, if the dismissal is done after giving notice and there is an ambiguity, the ruling should be construed in the employee’s favour.

Overall, the existence or the absence of a notice of dismissal has no relevance to the EDT. Therefore, whether you make a successful employment tribunal claim or an unsuccessful one, the EDT will remain unaffected by the judgement.

The only question remains for the tribunal to answer is determining the exact date when the contract of employment ceases to exist. In case you need more information on EDT and its various aspects, you can contact a reputable employment law solicitor.