Duniec v Travis Perkins Trading Company Ltd

For the primary time limit for an unfair-dismissal complaint, the effective date of termination following a summary dismissal is the date on which that dismissal takes effect. Employment Rights Act 1996 section 97(2) does not add the employee’s statutory minimum notice entitlement when calculating the limitation period under section 111. That extension is confined to the statutory purposes expressly listed in section 97(2).

Whether the employer was contractually entitled to dismiss summarily is therefore immaterial to that limitation calculation. A contention that dismissal was not communicated may fail where the tribunal finds that the employee was told of the summary dismissal and given a letter confirming it on that day.

The claimant, a driver, was summarily dismissed on 15 May 2012. He presented claims of unfair dismissal and race discrimination on 16 August 2012.

At a pre-hearing review, the Employment Tribunal held that the effective date of termination was 15 May 2012. It found the claims outside their primary limitation periods. It struck out the unfair-dismissal claim because timely presentation had been reasonably practicable and, alternatively, because the claim had no reasonable prospect of success. It also made orders concerning the discrimination claim.

The claimant appealed the strike-out and deposit orders. Following a rule 3(10) hearing, the deposit-order appeal was dismissed and the strike-out appeal proceeded. The central issue was whether statutory notice under Employment Rights Act 1996 section 86 extended the effective date of termination for the unfair-dismissal time limit.

1. Appeal dismissed. The Employment Judge correctly struck out the unfair-dismissal complaint as out of time.

2. Under Employment Rights Act 1996 section 97(1)(b), where employment is terminated without notice, the effective date of termination is the date on which the summary termination takes effect. Section 97(2) extends that date by statutory notice only for the purposes expressly specified: the qualifying period, calculation of the basic award, and calculation of a maximum week’s pay. It does not extend the date for the three-month limitation period in section 111.

3. Accordingly, the five weeks’ statutory notice to which the claimant would otherwise have been entitled did not alter the primary time limit. Whether the employer could rely on the employee’s repudiatory conduct under section 86(6) was immaterial to that issue. The Tribunal was not required to determine whether the employer was entitled to dismiss summarily before deciding limitation.

4. The Employment Judge was entitled to find that dismissal was communicated on 15 May 2012. The claimant was told at the disciplinary meeting that he was summarily dismissed and was given a letter confirming it. The later reading of that letter by his wife did not defer the effective date of termination on the facts found.

5. There was no error of law in the finding that it had been reasonably practicable to present the unfair-dismissal complaint in time. The alternative merits ruling would also have been upheld: the claimant’s extensive lending of a staff-discount card, despite knowing the restrictions on its use, made dismissal plainly fair.

• Employment Appeal Tribunal: dismissed the appeal against strike-out of the unfair-dismissal claim.
• Employment Appeal Tribunal, rule 3(10) hearing: dismissed the appeal against the deposit order but permitted the strike-out appeal to proceed to a full hearing.
• Employment Tribunal: at a pre-hearing review, held that the effective date of termination was 15 May 2012 and struck out the unfair-dismissal claim as out of time, alternatively for lack of reasonable prospects.