McCabe v Greater Glasgow Health Board

The effective date of termination is determined objectively under section 97(1) of the Employment Rights Act 1996. The question is whether the employment ended on notice or without notice, assessed from what the parties said and did and the surrounding circumstances. A contractual entitlement to notice, or payment in lieu, does not itself establish dismissal on notice.

For discrimination claims, an allegation of a continuing act must be identified with reasonable clarity in the ET1 or otherwise properly advanced. A disciplinary appeal does not automatically extend the discriminatory act or time limit. A tribunal is not required to consider a just and equitable extension where the claimant provides no supporting evidence and makes no submission inviting its exercise.

The claimant, a staff nurse, was dismissed after the respondent concluded that her disability prevented her from continuing in her existing work and that no suitable alternative employment was available. The Employment Tribunal found that her employment ended immediately on 1 November 2012, although she was entitled to payment in lieu of notice. It dismissed her unfair dismissal and disability discrimination claims as out of time.

The claimant appealed, arguing that the effective date of termination was 29 November 2012 because she had been entitled to notice, and that the disciplinary appeal constituted part of a continuing discriminatory act. She also challenged the tribunal’s approach to extending time on a just and equitable basis.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the claimant was dismissed with immediate effect on 1 November 2012. Section 97(1)(a) and (b) of the Employment Rights Act 1996 required the tribunal to determine objectively whether termination occurred on notice or without notice.
2. The assessment depended principally on what the employer said, what the parties did, contemporaneous documents, and whether their conduct objectively demonstrated a common understanding. Evidence of intention could be relevant only insofar as it characterised objectively assessed conduct. The employer’s possible breach of contract, its entitlement to act lawfully, and payment in lieu of notice were factors, not decisive conclusions.
3. The tribunal’s findings that the employer said the employment was terminated that day, that contemporaneous notes recorded dismissal from that day, that the claimant immediately behaved as though she had been dismissed, and that the termination letter identified 1 November as the last date of employment justified its conclusion. The reference to payment of notice and holiday pay did not imply that employment continued during a notice period.
4. The disability discrimination claim was also out of time. On a fair reading of the ET1, the only alleged discriminatory act was dismissal. The claim did not identify the appeal hearing or its outcome as a separate act, nor provide a reasonably arguable basis for treating the process as an act extending over a period under section 123(3)(a) of the Equality Act 2010.
5. An appeal following dismissal is not automatically a continuing discriminatory act. It may confer a potential advantage on the dismissed employee. A different conclusion might arise where the appeal process itself was discriminatory or part of a discriminatory process, but that was not the case pleaded or evidenced here.
6. The tribunal was entitled not to extend time on a just and equitable basis. The claimant gave no evidence explaining the delay, no evidence of relevant prejudice, and made no submission inviting an extension. A tribunal need not anticipate an unadvanced application.
7. No costs order was made. The appeal was not considered misconceived within Rule 34A of the Employment Appeal Tribunal Rules 1993.

• Employment Appeal Tribunal: dismissed the appeal from the Employment Tribunal’s decision on jurisdictional time limits and declined to make a costs order.
• Employment Tribunal, Glasgow: dismissed the unfair dismissal and disability discrimination claims as out of time.