G Meaker v Cyxtera Technology UK Limited

For the statutory effective date of termination, a summary dismissal takes effect when it is communicated to the employee. This is so even if the dismissal is a repudiatory breach which the employee has not accepted at common law. Employment Rights Act 1996 section 97 is a statutory construct and is not governed by contractual rules on acceptance of repudiation.

A dismissal communication must be construed objectively and in its factual context. A letter may both communicate an unconditional termination and make a separate, conditional settlement offer. The employee must show that it was not reasonably practicable to present an unfair-dismissal complaint in time.

The claimant, a night-shift data-centre technician, was absent following back injuries. The respondent concluded that his permanent restrictions prevented a return to his manual role.

On 5 February 2020, the respondent sent a letter headed “without prejudice”. It stated that employment would end on 7 February, identified holiday and notice payments, and offered an additional ex gratia sum conditional on a settlement agreement. The claimant rejected the settlement offer. The Employment Tribunal held that the letter dismissed him, that the effective date of termination was 7 February 2020, and that his unfair-dismissal complaint was out of time.

The claimant appealed. The central issues were whether an unaccepted repudiatory dismissal could set the statutory effective date of termination, whether the letter objectively communicated dismissal, and whether late presentation was not reasonably practicable.

1. Appeal dismissed. The Employment Tribunal made no error in holding that the effective date of termination was 7 February 2020.

2. Under sections 95 and 97 of the Employment Rights Act 1996, the statutory effective date of termination does not depend upon first identifying a contractual termination effective at common law. Following Robert Cort, as endorsed in Rabess, where an employer summarily dismisses an employee, the effective date is the date on which dismissal is communicated, even if the dismissal is repudiatory and the employee has not accepted it. Geys decided a contractual question and did not alter that statutory analysis.

3. The question whether a communication amounts to dismissal is objective and contextual. It must clearly communicate that employment is being terminated on an identified or unambiguously ascertainable date. The tribunal was entitled to find that the 5 February letter did so. Its statements of a last day, notice entitlement, holiday pay, payment in lieu and a P45 were unconditional. The later offer was expressly conditional only as to the additional ex gratia payment and settlement agreement. The inaccurate reference to mutual agreement and the “without prejudice” heading did not make the termination ambiguous.

4. The tribunal was also entitled to refuse an extension for the unfair-dismissal complaint. The claimant knew that the respondent treated 7 February as the termination date, received payments calculated on that basis, and had trade-union and legal advice. It was therefore reasonably practicable to lodge in time.

• Employment Appeal Tribunal: appeal dismissed: [2023] EAT 17.
• Employment Tribunal, Watford: at a preliminary hearing, held that the effective date of termination was 7 February 2020; dismissed the unfair-dismissal complaint as out of time; and extended time for the disability-discrimination complaint.