Fitzgerald v University of Kent At Canterbury

The Court of Appeal held that the effective date of termination (EDT) is a statutory construct determined by the statutory scheme in the Employment Rights Act 1996 rather than by a private agreement between employer and employee. Key provisions in issue included section 97 (effective date of termination), section 111 (time limits for tribunal complaints), section 108 (qualifying period) and section 203 (restrictions on contracting out). The court concluded that an agreement to backdate the termination to 28 February 2001 could not displace the date on which the employment in fact terminated (on or after 2 March 2001) for the purposes of the Act and that such an agreement was caught by s.203 as purporting to limit statutory rights. The appeal was allowed and the claim was remitted to the employment tribunal for determination of the remaining issues.

Background and facts:

• The appellant was employed by the respondent from 1 July 1995 until a disputed date in February or March 2001. She suffered from depressive illness, applied for early ill‑health retirement in November 2000, which was approved on 22 February 2001, and accepted retirement on 2 March, with retirement stated to be effective from 28 February. She brought employment tribunal proceedings alleging disability‑related dismissal and unlawful treatment. The tribunal found the effective date of termination to be 28 February 2001, that this retrospective date had been agreed, and concluded the claim was out of time.
• The Employment Appeal Tribunal upheld the tribunal's decision on the time issue and granted permission to appeal to the Court of Appeal.

Nature of the claim and relief sought:

• The appellant sought to bring complaints to the employment tribunal alleging dismissal that was discrimination-related (disability). One pivotal relief question was whether her complaint was presented within the statutory three‑month time limit measured from the effective date of termination.

Issues framed by the court:

• Whether the effective date of termination for statutory purposes can be fixed by agreement between the parties or is determined objectively by the statutory rules in the Employment Rights Act 1996.
• Whether an agreement that has the practical effect of depriving or extending rights under the Act amounts to an unlawful contraction out under s.203.
• Consequential issues about continuity of employment, qualifying periods, calculation of basic awards and the time limit for bringing claims.

Court's reasoning and disposition:

• The court analysed the statutory scheme, in particular sections 97, 108, 109, 111, 119, 203, 211 and 212 of the Employment Rights Act 1996, and concluded that the EDT is a statutory construct dependent on what in law has occurred between the parties, not on a private agreement to treat an earlier or later date as the EDT for statutory purposes.
• The Court of Appeal rejected the proposition that consensual re‑dating of the EDT can displace the statutory formula, observing that permitting such re‑dating would allow parties to circumvent statutory protections (for example, qualifying periods and basic award calculations) and would undermine the objective statutory scheme governing continuity and limitation periods.
• Additionally, the court held that s.203, which renders void any agreement purporting to exclude or limit the operation of the Act, applied to agreements that effectively re‑date the EDT and thereby limit statutory rights; the backdating relied upon by the respondent therefore fell within s.203.
• The court allowed the appeal, concluded that the EDT could not lawfully be treated as earlier than the date on which the employment in fact terminated (on or after 2 March 2001), and remitted the case to the employment tribunal for determination of the remaining substantive issues.

Other observations:

• The court criticised the splitting off of the time issue as a false economy and noted that tribunals should be cautious before splitting trials because of likely wasted costs.

Appeal allowed. The Court of Appeal held that the effective date of termination is a statutory construct determined by what has in fact occurred between the parties under the Employment Rights Act 1996 and cannot be displaced by a private agreement to re‑date termination for statutory purposes. In addition, an agreement which purports to limit the operation of the statutory time limits and related rights falls within s.203 and is void. Consequently the effective date of termination was not earlier than 2 March 2001 and the appellant's complaint was presented in time. The matter was remitted to the employment tribunal for determination of remaining issues.

The claim was first heard by an employment tribunal which found the effective date of termination to be 28 February 2001 and dismissed the complaint as out of time. The Employment Appeal Tribunal, with Judge Peter Clark presiding, upheld that decision but gave permission to appeal. The matter came before the Court of Appeal (this judgment) which allowed the appeal. Neutral citation at this level: [2004] EWCA Civ 143.