Effective date of termination
18 January 2018
Where there is a summary dismissal and notice is subsequently given, does that move the effective date of termination ("EDT”) to the end of the notice period?
No, held the Employment Appeal Tribunal (EAT) in Cosmeceuticals Ltd v Parkin.
The claimant was the managing director of a manufacturer and distributor of skincare and makeup. The respondent's board had concerns about her performance and, on the claimant's return from sabbatical, the chairman informed her that she could not return to the job. This happened on 1 September 2015. Three days later she was put on garden leave and on 29 September the chairman wrote to her (for the sake of clarity) to give notice of termination ending on 23 October 2015.
The claimant brought a claim with both parties agreeing that 23 October 2015 was the EDT. The tribunal found that on 1 September the claimant was told her employment had ended and that constituted communication of the dismissal. However, the tribunal held the EDT fell at the end of the subsequently-given notice period.
The EAT held this to be in error. The EDT is a statutory construct under which the date of communication to the employee of summary dismissal is the EDT even if the employer should have given notice but failed to do so. The tribunal had made a factual finding there had been an effective dismissal without notice on 1 September and the employer only subsequently sought to put the claimant on garden leave and give her notice. The EDT was thus 1 September and that was the relevant date for determination of whether the claim was presented in time.
With thanks to Daniel Barnett’s employment law bulletin for providing a summary of this case.