Avuru v Favernmead Ltd & Anor

An effective date of termination may be communicated by an employer’s conduct. The question is objective: whether the conduct, known to the employee, clearly conveyed that employment had ended. A tribunal must resolve material conflicts in the evidence and give adequate reasons before preferring a subjective belief in continuing employment over objective indications to the contrary.

Under section 164 of the Employment Rights Act 1996, a written redundancy-payment claim made within six months of the relevant date falls under section 164(1). A later claim falls under section 164(2) and requires a just-and-equitable determination. An enquiry seeking evidence that a payment was made is not, without more, a claim for payment.

The Claimant had worked as a live-in carer for the second Respondent’s mother. Following the mother’s death, no alternative work was offered and the Claimant stopped receiving wages. She brought claims for redundancy payment, unfair dismissal, and race and sex discrimination.

The Employment Tribunal held that it lacked jurisdiction because the claims were out of time. It fixed the effective date of termination at 15 November 2017. The Claimant appealed, principally contending that a letter sent by her MP constituted a timely redundancy-payment claim. The Respondents cross-appealed, contending that termination had occurred substantially earlier.

The central issues were the objectively communicated effective date of termination and whether the MP’s letter was a written claim under section 164 of the Employment Rights Act 1996.

1. The cross-appeal was allowed and the appeal dismissed. The EAT substituted 28 April 2017 as the effective date of termination under sections 97(1)(b) and 145(2) of the Employment Rights Act 1996.

2. A dismissal may be communicated by conduct rather than express words. The correct question is how the employer’s words or conduct would be understood objectively by an employee aware of them. The death of the person for whom the Claimant had provided personal care, the absence of alternative work, and the cessation of wages objectively conveyed that her employment had ended.

3. The Employment Judge’s selection of 15 November 2017 could not stand. Her own findings established that it was unreasonable for the Claimant to believe after 31 March 2017 that she remained employed. She had also failed to resolve the material conflict between the Claimant’s asserted promise of future work and the Respondents’ contrary evidence. A tribunal cannot accept one side’s contested evidence without adequate reasons.

4. The EAT modified the Respondents’ proposed date of 31 March 2017. An unequivocal intention to dismiss takes effect only when communicated. The Claimant could only have understood the position when, at the end of April 2017, she became aware that her wages had not been paid.

5. Sections 164(1) and 164(2) are alternative time provisions, not cumulative requirements. The MP’s letter of 26 March 2018 was nevertheless not a claim for redundancy payment. It was a neutral request for evidence of the alleged payment while the Claimant considered her position. The Tribunal’s conclusion that it had no jurisdiction was therefore upheld. Grounds two to four of the appeal were dismissed; ground one became immaterial.

• Employment Appeal Tribunal: Allowed the Respondents’ cross-appeal, substituted 28 April 2017 as the effective date of termination, dismissed the Claimant’s appeal, and upheld the Employment Tribunal’s conclusion that it lacked jurisdiction.
• Employment Tribunal: Held the claims out of time and concluded that it had no jurisdiction to entertain them. It had fixed the effective date of termination at 15 November 2017.