Rabess v The London Fire And Emergency Planning Authority

For the statutory effective date of termination under the Employment Rights Act 1996, a summary dismissal takes effect on the date of actual dismissal. The date is not postponed by treating the dismissal as a repudiatory breach accepted later. The statutory concept is autonomous from common-law contract analysis. An internal appeal can retrospectively change the date where it nullifies the dismissal or substitutes a non-dismissal sanction. It does not do so where dismissal is confirmed and the employee receives payment in lieu of notice. The effective date remains a question of fact determined by the appeal decision and surrounding circumstances.

The appellant, a firefighter, was summarily dismissed for gross misconduct on 24 August 2012. On internal appeal, the finding was reduced to misconduct, but dismissal was confirmed because of a live final written warning. Six weeks’ pay in lieu of notice was awarded, and the last day of service remained 24 August 2012.

He presented an unfair dismissal claim on 3 January 2013. The Employment Tribunal struck it out as out of time. The Employment Appeal Tribunal dismissed his appeal on 24 September 2014. The central issue before the Court of Appeal was whether the internal appeal altered the effective date of termination under the Employment Rights Act 1996.

The Court of Appeal, Laws LJ giving the judgment with which King and Lindblom LJJ agreed, dismissed the appeal.

1. The three-month limitation period in section 111(2) of the Employment Rights Act 1996 runs from the statutory effective date of termination. That date is an autonomous statutory construct.
2. Under section 97(1)(b), where an employee is summarily dismissed without notice, the effective date is the date of actual dismissal. It is not postponed by contractual analysis under which the dismissal is treated as a repudiatory breach accepted at a later date. The reasoning in Robert Cort [1981] ICR 816 remained correct and had been approved in Stapp [1982] IRLR 326 and Kirklees v Radecki [2009] ICR 1244.
3. The protective purpose of the legislation did not require a later date here. Gisda Cyf [2010] ICR 1475 was consistent with an autonomous statutory interpretation, while Geys [2013] 1 AC 523 concerned common-law contractual termination and did not govern statutory rights under the 1996 Act.
4. An internal appeal may retrospectively alter the effective date where it nullifies the dismissal or substitutes a sanction other than dismissal, as illustrated by Roberts [2004] IRLR 788. Here, the appeal expressly confirmed dismissal, merely reduced the disciplinary finding and awarded notice pay. The case therefore remained one under section 97(1)(b), and the effective date remained 24 August 2012.

The claim had consequently been presented out of time. There was no issue that it had not been reasonably practicable to present it within three months.

• Court of Appeal (Civil Division) — Appeal dismissed against the Employment Appeal Tribunal’s judgment.
• Employment Appeal Tribunal — Appeal dismissed on 24 September 2014.
• Employment Tribunal — Unfair dismissal claim struck out on 24 May 2013 as presented out of time.