Lawal v Birmingham & Solihull Mental Health NHS Foundation Trust

A contract of employment ends when an employee’s contractual notice of resignation expires. A purported disciplinary dismissal imposed after that employment has ended is a nullity and cannot create a later effective date of termination.

Where claims are presented outside the applicable primary time limits, an Employment Tribunal may refuse an extension if it finds that timely presentation was reasonably practicable, or that an extension is not just and equitable. An appellate court will not interfere absent an error of law or a flawed exercise of discretion.

The claimant resigned from his employment by contractual notice, which expired on 21 July 2011. After his employment had ended, the respondent continued disciplinary proceedings and purported to summarily dismiss him on 6 December 2011.

He presented an ET1 on 17 February 2012 alleging unfair dismissal, unauthorised deductions from wages and racial discrimination. The Employment Judge held that the effective date of termination was the expiry of the resignation notice, so that all claims were out of time. The judge also refused extensions of time.

The claimant appealed, principally contending that the later purported dismissal affected the termination date and that his claims should proceed.

1. Appeal dismissed. The Employment Judge was entitled to hold that the effective date of termination was 21 July 2011, when the claimant’s contractual notice of resignation expired.

2. Once that notice had expired, the employment relationship had ended. The respondent’s later disciplinary hearing and its letter of 6 December 2011 purporting to summarily dismiss the claimant could not dismiss a person who was no longer employed. The respondent conceded, and the Appeal Tribunal declared, that the purported dismissal was a nullity and of no effect.

3. All the claims were therefore presented outside the primary limitation periods. The Employment Judge was entitled to find that it had been reasonably practicable to present the Employment Rights Act claims in time and, in any event, that they had not been brought within a reasonable further time.

4. There was no legal basis to interfere with the Employment Judge’s exercise of discretion in refusing to extend time for the statutory claims and the racial discrimination complaint, whether considered under the Race Relations Act 1976 or the Equality Act 2010.

• Employment Appeal Tribunal: dismissed the claimant’s appeal from the Employment Judge’s judgment dated 18 June 2012, with written reasons dated 7 August 2012.
• Employment Tribunal: held that the claims for unfair dismissal, unauthorised deductions from wages and racial discrimination were time-barred, and refused extensions of time.