Rabess v The London Fire And Emergency Planning Authority

The Court of Appeal dismissed the appellant's challenge to the Employment Appeal Tribunal's decision that the effective date of termination (EDT) remained the date of the summary dismissal, 24 August 2012. The court applied the statutory scheme in the Employment Rights Act 1996, in particular section 97(1) and section 111(2), and followed established authority (notably Robert Cort) that where an employee is summarily dismissed the EDT for the purposes of the time limit for unfair dismissal claims is the date of the summary dismissal. The court held that the internal appeal decision, which reduced the finding from gross misconduct to misconduct and awarded pay in lieu of notice, did not alter the EDT because the dismissal was expressly confirmed and the decision did not revive the employment or change when the termination took effect.

Background and procedural history:

• The appellant was dismissed summarily on 24 August 2012 and exercised an internal appeal which was heard on 9 January 2013. The appeal reduced the finding from gross misconduct to misconduct but confirmed dismissal and awarded pay in lieu of notice. The appellant presented an unfair dismissal claim to the Employment Tribunal on 3 January 2013 (before the internal appeal hearing). The Employment Tribunal struck out the unfair dismissal claim as presented out of time. The Employment Appeal Tribunal dismissed the appellant's appeal on 24 September 2014. Permission to appeal to the Court of Appeal was granted by Lewison LJ on 15 December 2014.

Nature of the claim and relief sought: The appellant sought to treat the effective date of termination as later than 24 August 2012 so that his unfair dismissal claim would be within the three month time limit under section 111(2) of the Employment Rights Act 1996. Two alternative bases were advanced: (i) the employer's internal appeal meant the contract should be treated as terminated by notice so that the EDT was the end of the notice period, and (ii) if the dismissal remained without notice then the EDT should be the date on which the employee accepted the employer's repudiatory breach by taking payment in lieu of notice.

Issues framed by the court:

• Whether the outcome of the internal appeal altered the EDT under section 97(1) so as to extend the time for bringing an unfair dismissal claim.
• Whether payment in lieu of notice or the employer's internal decision could be treated as effecting or shifting the date on which the termination took effect.

Court's reasoning and conclusion: The court emphasised that section 97(1) and the statutory scheme must be interpreted in their statutory setting, with the aim of protecting employees, but held that established authority controls the identification of the EDT. The court followed Robert Cort [1981] ICR 816 and subsequent approvals in this court, accepting the reasoning that when an employee is summarily dismissed the EDT for statutory purposes is the date of that dismissal even if the employee has a concurrent common law cause of action for wrongful dismissal. The Court of Appeal rejected the submission that Gisda Cyf or Geys required a different result: Gisda supports a purposive construction of the 1996 Act but does not displace Robert Cort, and Geys concerned common law contractual issues rather than the statutory EDT. The internal appeal did not revive the contract or change the date on which the termination took effect; the EDT therefore remained 24 August 2012 and the appellant's claim was out of time. The appeal was dismissed.

Appeal dismissed. The Court of Appeal held that, applying the Employment Rights Act 1996 and binding authority (in particular Robert Cort), the effective date of termination remained the date of the summary dismissal (24 August 2012). The internal appeal decision, although altering the misconduct finding and awarding pay in lieu of notice, did not alter when termination "took effect" for the statutory time limit.

Appeal from the Employment Appeal Tribunal (His Honour Judge Richardson) judgment of 24 September 2014 which dismissed the appellant's appeal against the Employment Tribunal's determination of 24 May 2013. Permission to appeal to the Court of Appeal was granted by Lewison LJ on 15 December 2014.