Fitzgerald v University of Kent At Canterbury

The effective date of termination under the Employment Rights Act 1996 is a statutory construct. It is determined by what happened between the parties, not by an agreement to treat a different date as the termination date. An agreement may fix a date for non-statutory purposes, but cannot alter the date used for statutory limitation, qualifying service, continuity, age limits or compensation. Section 203(1) renders void an agreement purporting to limit the Act. Section 97(2) does not postpone the effective date for presenting an employment tribunal complaint.

The appellant, employed by the respondent university, applied for ill-health retirement. Retirement was approved on 22 February 2001, and on 2 March she accepted retirement retrospectively from 28 February. She brought a disability-related complaint on 1 June, contending that she had been dismissed on 2 March.

The employment tribunal found that 28 February was the agreed effective date of termination and that the complaint was out of time. The Employment Appeal Tribunal upheld that decision. The appeal concerned whether the effective date was objectively fixed by statute or could be determined by agreement.

1. Disposition. The appeal was allowed. On the facts found, the effective date of termination was not earlier than 2 March 2001, so the complaint was presented in time. The claim was remitted to the employment tribunal to determine the remaining issues.
2. Statutory construction. Under the Employment Rights Act 1996, the effective date of termination is a statutory construct. It depends on what occurred between the parties over time, applying the statutory rules, rather than on what they agree to treat as having occurred. The date therefore governs all statutory calculations dependent upon it, including limitation, qualifying service, continuity of employment and the basic award.
3. Effect of notice provisions. Section 97(2) gives a later date for the qualifying period and basic award in specified short-notice cases. It does not postpone the effective date for presenting a complaint under section 111. The statutory policy in sections 97(2) and (3) would be defeated if an employer could secure an agreed earlier date and thereby remove statutory unfair-dismissal protection or reduce the basic award.
4. Contracting out. Independently, section 203(1) rendered void an agreement purporting to limit the operation of the Act. The word purporting covers provisions which have that limiting effect, even without expressly claiming to alter statutory rights. The approach in Crank v HMSO [1985] ICR 1, as upheld in Lambert v Croydon College [1999] ICR 409, could not govern this issue. The statutory continuity approach in Wood v York City Council [1978] IRLR 228 and Caines v Hamon-Lummus Ltd was applied.
5. Scope and procedure. The parties remained free to agree dates for pension or other purposes outside the statutory scheme. The court was not deciding the compromise of a genuine factual dispute about dates. It also observed that preliminary issues should be split only where the costs saved substantially outweigh the costs wasted.

• Court of Appeal (Civil Division): allowed the appeal, held that the effective date of termination was not earlier than 2 March 2001, and remitted the claim to the employment tribunal. [2004] EWCA Civ 143
• Employment Appeal Tribunal: upheld the employment tribunal’s conclusion that 28 February 2001 was the effective date and that the complaint was out of time.
• Employment Tribunal: found that the parties had agreed retrospectively that employment terminated on 28 February 2001.