McDade v Critchlow & Ors

A genuine summary dismissal takes effect when it is communicated. An internal appeal does not postpone the effective date of termination unless the contract expressly provides that employment continues pending the appeal. A contractual notice period does not arise where the employee is summarily dismissed. Article 6 of the European Convention on Human Rights does not require an inter partes hearing where the litigant has received a hearing. There is no general right to have every word spoken to the court transcribed at public expense.

The applicant was employed by a firm of solicitors and was summarily dismissed on 17 November 1998 following disciplinary action. An internal contractual appeal was unsuccessful, with the result notified on 29 December 1998. She submitted claims for wrongful and unfair dismissal on 17 February 1999.

The Employment Tribunal held that the effective date of termination was 17 November 1998, making the claims one day out of time, and that it had been reasonably practicable to present them earlier. The Employment Appeal Tribunal upheld that decision on 29 January 2001. The applicant sought permission to appeal, challenging the effective date, the ex parte hearing, the transcript, and the absence of a three-month notice period.

Application dismissed. The Employment Appeal Tribunal had correctly upheld the Employment Tribunal’s conclusion that the claims were out of time.

1. The applicant was summarily dismissed on 17 November 1998. A genuine summary dismissal, provided it is not artificially created, takes effect at that time. An internal appeal does not affect the effectiveness of the dismissal unless the contract expressly provides for continuation of the employment pending the appeal. The applicant’s contract contained no such provision. The dismissal was a straightforward dismissal by the employer and was not a repudiatory breach awaiting acceptance by the applicant.
2. Because the effective date was 17 November 1998, the applicable three-month period expired on 16 February 1999. The claim received on 17 February was therefore one day late. The Employment Tribunal had also correctly found that it had been reasonably practicable to present the claim in time.
3. The objection that the Employment Appeal Tribunal hearing was ex parte did not establish a breach of Article 6. That provision gave no right to an inter partes hearing as distinct from a hearing, and the applicant had manifestly received a hearing.
4. The transcript ground was misconceived. The court had an extremely accurate transcript of the judge’s determination. There was no right to have every word spoken by the applicant transcribed at public expense, and any complaint concerning an earlier dispute was irrelevant.
5. The contractual three-month notice provision did not arise because the applicant had been summarily dismissed. Permission to appeal was refused and the formal order was that the application be dismissed.

• Court of Appeal (Civil Division): On 22 May 2001, refused permission to appeal and dismissed the application. [2001] EWCA Civ 915
• Employment Appeal Tribunal: On 29 January 2001, upheld the Employment Tribunal’s decision that the effective date of termination was 17 November 1998 and that the claims were out of time.
• Employment Tribunal: Held that the applicant’s claims were barred by time, that termination took effect on 17 November 1998, and that it had been reasonably practicable to present the claims by 16 February 1999.