In order to make a valid unfair dismissal complaint an employee needs to begin the employment tribunal claims process (nearly always by starting the ACAS Early Conciliation process) within three months of their effective date of termination (EDT). Therefore, establishing what the EDT is among the primary duties of any union rep when advising whether a member has a good unfair dismissal claim.
With the harsh approach to time limits the employment tribunals apply with their “reasonably practicable” test the sad fact is that many many substantively good employment tribunals have been dismissed because of a miscalculation of an EDT.
The general rule is that an employee EDT is the date the dismissal is communicated to the employee. As I have discussed previously the Supreme Court in Gisda Cyf (2010) clarified that the EDT is effective only at the time when the notice of termination is either received and read by the employee or would reasonably have been read. This means that calculating the EDT can be more difficult (but helpful to employees) because the EDT is judged by more than just, for example, what date a letter was sent.
As a rule of thumb however it is always best in cases where a dismissal has been first communicated by post to err on the side of caution and calculate the EDT from the date of the letter, that way any claim will always be in time.
In the remainder of this post I want to offer some brief technical situations in addition to the issue of when a letter was read where the EDT may differ from a date calculated from a date a letter was sent.
First, and most commonly, if an employee is informed in a face to face meeting that they have been dismissed and that is followed up by a letter confirming this then the date that needs to be used is the date the employee was informed.
Second, if a union representative of the employee (or a solicitor acting for an employee) is informed of the dismissal before the employee and then informed the employee then it is this date, and not the date the employee is informed of the dismissal directly by the employer that should be used as the starting point for calculations. This principle was set down in the Employment Appeal Tribunal’s decision in Robinson v Bowskill & Ors [2013] UKEAT 0313_12_2011. In that case an employee was dismissed in her absence on 6 July and an email to the claimant’s solicitor was sent informing them of this that same day. The next day (7 July) the solicitor told the employee what the email said and the following day (8 July) the employee received a dismissal letter from her former employer. The case turned on whether the EDT was 6 July (the date the solicitor was informed), 7 July the date the solicitor informed the employee, or 8 July (the date the employer directly informed the employee). Applying the Gisda Cyf case referred to above the EAT decided the employee still needed to directly know of the dismissal but it did not matter that it was the solicitor whom had told her.
Third, where a letter is is a dismissal letter giving a period of notice then unless there is a clear contractual provision to the contrary then the notice period should begin on the day after the letter was sent, not the day of the letter. This was set out in the EAT decision in Wang v University Of Keele [2010] UKEAT 0223_10_0804. For example, if an employee receives and reads a letter dated 8 June 2019 giving him one moths notice then adding that one month would appear to give an EDT date of 8 July 2019. However, applying the principle in Wang that the notice period starts the following day, namely 9 June 2019, means the actual date of dismissal would be one day later on 9 July 2019.
Finally, an employee is often dismissed and told not to attend work during the notice period. Here the question of when the EDT is will be very case specific. If the employee is dismissed immediately and is given a sum to pay for the sums she would have received during her notice period then the date should be calculated from the date of the dismissal decision. However, if the employee is simply asked to stay at home for the notice period then this is likely to still be pre-dismissal work and so the EDT will be the date that ends.
The most important advice on EDT remains as it was stated at the beginning of this post however. If the EDT is unclear it is best to assume the date is the earliest one possible.
