Meaker v Cyxtera Technology UK Ltd

The Employment Appeal Tribunal held that the effective date of termination (EDT) for the purposes of an unfair dismissal complaint is determined under section 97 of the Employment Rights Act 1996 and, where a dismissal is communicated by letter, is the date on which that communication is received. The tribunal’s finding that the letter of 5 February 2020 operated as an unequivocal dismissal with an EDT of 7 February 2020 was not wrong in law. The EAT applied and endorsed the approach in Robert Cort and Rabess that the statutory EDT is to be determined independently of detailed common-law rules about acceptance of repudiatory breaches; Gisda Cyf was applied on the point that a dismissal communicated by letter takes effect when the employee reads it or has a reasonable opportunity to read it. The EAT also upheld the tribunal’s construction of the letter despite its "without prejudice" heading and the enclosure of a draft settlement agreement because the termination paragraphs were separable from the conditional ex gratia offer. Finally, the tribunal did not err in refusing to extend time under section 111 ERA 1996 because the claimant had sufficient knowledge and access to advice to present his unfair dismissal claim within the statutory period.

Background and parties: The claimant was employed in a heavy manual night role and sustained back injuries that led to long-term limitations. Following unsuccessful income protection appeals the respondent and claimant communicated about possible settlement and termination. The claimant brought proceedings alleging unfair dismissal and disability discrimination.

Procedural posture: At first instance an employment tribunal (preliminary hearing, Watford) found that a letter dated 5 February 2020 (received 6–7 February) was a dismissal letter, that the effective date of termination was 7 February 2020, and that the unfair dismissal claim, presented on 19 June 2020, was out of time; time was extended for the disability discrimination claim. The claimant appealed to the Employment Appeal Tribunal.

Nature of the claim / relief sought: The claimant complained of unfair dismissal and disability discrimination; the primary contest on appeal concerned jurisdiction and time limits for the unfair dismissal complaint (EDT and extension of time under section 111 ERA 1996).

Issues framed by the court:

• Whether the tribunal erred in law in treating the 5 February 2020 letter as effecting a dismissal and in fixing the EDT as 7 February 2020 for the purposes of sections 95 and 97 ERA 1996;
• Whether, if the letter was a repudiatory breach not accepted at common law, that affected the statutory EDT;
• Whether the tribunal erred in construing the letter despite its "without prejudice" heading and the attached settlement agreement;
• Whether it was reasonably practicable for the claimant to present his unfair dismissal claim within the statutory time limit (section 111 ERA 1996).

Court’s reasoning and conclusions: The EAT concluded that the tribunal had not erred. On the law of EDT the tribunal correctly followed the established approach (Robert Cort; Rabess) that the statutory EDT is determined for Employment Rights Act purposes and is not displaced by contract-law niceties about acceptance of repudiatory breaches. Gisda Cyf was applied to confirm that a dismissal communicated by letter takes effect when the employee reads it or has a reasonable opportunity to read it. The tribunal’s objective construction of the 5 February letter was open to it: the termination paragraphs unambiguously communicated a unilateral termination effective 7 February and the ex gratia payment was expressly conditional on signing the settlement agreement; the "without prejudice" heading did not prevent these paragraphs having legal effect. Finally, the tribunal reasonably concluded that the claimant could and should have presented his unfair dismissal claim in time and so was not entitled to extension under section 111. The appeal was dismissed.

The appeal is dismissed. The EAT held that (1) the tribunal was right to treat the letter of 5 February 2020 as a dismissal communication and to fix the effective date of termination as the date the letter was received/known (7 February 2020); (2) section 97 ERA 1996 governs the EDT for statutory purposes irrespective of detailed common-law rules about acceptance of repudiatory breaches (Robert Cort and Rabess applied); (3) the "without prejudice" heading and enclosure of a settlement agreement did not prevent the termination paragraphs being an unambiguous unilateral termination; and (4) the tribunal was entitled to refuse an extension of time under section 111 ERA 1996 because it was reasonably practicable for the claimant to present his unfair dismissal claim within time.

Employment tribunal (preliminary hearing at Watford, Employment Judge Anderson) held the effective date of termination was 7 February 2020 and dismissed the unfair dismissal claim as out of time; the claimant appealed to the Employment Appeal Tribunal, which dismissed the appeal. (No neutral citation for the ET decision is given in the judgment.)