Rabess v London Fire and Emergency Planning Authority

The effective date of termination under Employment Rights Act 1996 is a statutory construct. It depends on what actually happened between the parties, rather than on conventional contractual analysis or on what ought contractually to have occurred.

An internal appeal forms part of those events and may, exceptionally, alter the effective date where its decision changes the date on which employment terminated. It does not do so where the appeal confirms the dismissal and expressly preserves the original last day of service. A later payment in lieu of notice, including one made after a finding that conduct was misconduct rather than gross misconduct, does not itself extend the effective date.

The claimant, a firefighter, was summarily dismissed for gross misconduct on 24 August 2012. An internal appeal later found misconduct rather than gross misconduct but, because a final written warning remained live, confirmed dismissal. The appeal decision stated that the last day of service remained 24 August 2012 and awarded six weeks' pay in lieu of notice.

The Employment Tribunal held that the unfair-dismissal claim, presented on 3 January 2013, was out of time under section 111(2) of the Employment Rights Act 1996. The claimant appealed. The central issue was whether the internal appeal and notice payment changed the effective date of termination from 24 August 2012.

1. Appeal dismissed. The Employment Judge was entitled, and plainly correct, to find that the effective date of termination remained 24 August 2012. The claim was therefore presented outside the three-month period in section 111(2) of the Employment Rights Act 1996.

2. Section 97 distinguishes termination by notice from termination without notice. In the latter case, the relevant date is when termination took effect. The statutory question is not resolved by conventional contractual principles. The effective date depends on what actually occurred between the parties.

3. An internal appeal is part of the events relevant to that inquiry. It may alter the effective date in the rare case where the appeal decision changes the date on which employment ended. That was the effect of the appeal decision in Hawes & Curtis Ltd v Arfan, where the employer expressly changed the dismissal date and kept the contracts open until then.

4. Here, however, the appeal was not allowed. It confirmed dismissal and expressly stated that the claimant's last day of service remained 24 August 2012. Recharacterising the conduct and recognising an entitlement to notice pay did not change the dismissal date. A payment in lieu of notice did not justify adding a notional notice period to the effective date.

• Employment Appeal Tribunal: appeal dismissed; the Tribunal upheld the Employment Judge's ruling that the unfair-dismissal claim was out of time.
• Employment Tribunal (London Central): on 29 May 2013, Employment Judge Pearl held that the claim had not been presented within the period required by section 111(2) of the Employment Rights Act 1996.