Drage v Governing Body of Greenford High School

When an employee has an internal appeal against dismissal, the effective date of termination is not determined automatically by the first dismissal communication. The court must decide whether the contractual scheme creates immediate dismissal subject to possible reinstatement, or suspension pending confirmation of the proposed dismissal. The initial letter is important, but the contract, governing disciplinary rules and later conduct may be equally significant. Where statutory rules require an appeal before implementation, and the employee remains suspended on pay until the appeal is rejected, termination takes effect when the appeal outcome is communicated. The unfair-dismissal limitation period therefore runs from that later date.

A teacher at a grant-maintained school was told on 17 February 1996 that the staff committee had decided he should be summarily dismissed. He appealed under the school's contractual and statutory disciplinary arrangements. The appeal panel rejected the appeal, and the governing body notified him on 13 March that his employment would terminate that day. He presented an unfair-dismissal complaint on 11 June.

The Industrial Tribunal treated 17 February as the effective date and held the complaint out of time. The Employment Appeal Tribunal upheld that decision. The Court of Appeal had to determine whether the appeal postponed implementation of the dismissal and, consequently, which date governed the limitation period under Employment Rights Act 1996.

The appeal was allowed unanimously. The decisions of the Industrial Tribunal and Employment Appeal Tribunal were reversed, and the matter was remitted to the Employment Tribunal to determine the substantive unfair-dismissal complaint.

1. The governing question was whether, pending the internal appeal, the employee was dismissed with a possibility of reinstatement or suspended with a possibility that the proposed dismissal would not be confirmed. The initial letter was important, but it was not necessarily decisive. The contractual arrangements and subsequent events could assist in determining its true effect.
2. The employment contract and disciplinary code had to be construed consistently with the mandatory Articles of Government made under the Education Act 1993. Article 16(8) empowered the staff committee to decide that employment should be terminated, but Article 16(9) required an opportunity of appeal before any action was taken to implement that decision. The decision was therefore not itself an implemented termination.
3. Chapman v Letheby & Christopher Limited [1981] IRLR 440 supported a non-technical construction from the standpoint of an ordinary reasonable employee, but that case did not involve an internal appeal. J. Sainsbury Ltd v Savage [1981] ICR 1 was binding and correctly decided on its different contractual scheme, which involved immediate dismissal, suspension without pay and possible retrospective reinstatement. The court considered Cooke v Ministry of Defence wrongly decided, but that criticism was unnecessary because Cooke was materially distinguishable.
4. The communications of 17 February were capable of meaning that the staff committee had decided on dismissal but that implementation awaited the appeal. Continued payment until 13 March, the P45 date, the respondents' pleadings and the express letter confirming termination on 13 March all supported suspension rather than possible reinstatement. The effective date under section 97(1)(b) of the Employment Rights Act 1996 was therefore 13 March, and the complaint was within the section 111(2) limitation period.

Costs were awarded subject to detailed assessment if not agreed.

1. Court of Appeal. Allowed the appeal, reversed the decisions below and remitted the substantive unfair-dismissal complaint to the Employment Tribunal.
2. Employment Appeal Tribunal. On 3 August 1998, upheld the Industrial Tribunal's decision and dismissed the appeal.
3. Industrial Tribunal. Held that the effective date of termination was 17 February 1996 and that the complaint was out of time.