REWARD INSIGHT
Termination date, disability, surveillance
Nicola Mullineux, senior employment specialist for Peninsula, reviews the decision in three cases
Cosmeceuticals Ltd v Parkin The ‘effective date of termination’ (EDT) is the date an employee’s employment comes to an end and it differs depending on the dismissal; for example, whether it is with or without notice. The EDT is crucial because an employee must bring an unfair dismissal claim within three months of this date, taking in to account time when the clock is stopped for early conciliation. The employment appeal tribunal (EAT) have considered whether an employee’s EDT can be changed by receiving written notice of termination following a summary dismissal. The employee worked in the role of managing director (MD) for a pharmaceuticals and cosmetics company from 22 June 2009. This was a senior position and, during the early stages of her employment, there were concerns about her visibility in the office, contributed to by her practice of working from home one day a week because of difficult personal circumstances. The chairman raised concerns with the MD about her approach to the role and how this might affect overall performance. He did not, however, state this could have a negative impact on her continuing employment. The employee agreed to take a two- month sabbatical in the summer of 2015 to focus on her personal circumstances. The
chairman’s concerns about her performance increased during this period and a meeting was held on 1 September 2015 when the employee returned to work. At the meeting, the chairman informed the employee of the performance concerns and told her that she would not be able to return to her position as MD of the company. Whilst there was some discussion about alternative employment within the business, these were not comparable to the senior position. ...employee must bring an unfair dismissal claim within three months... The employee was placed on garden leave. The chairman then wrote to the employee on 29 September 2015 giving her notice of termination of employment, with her last day confirmed as the 23 October 2015. The employee brought a claim of unfair dismissal. The employment tribunal (ET) raised the issue of EDT. Though they found the verbal discussion on 1 September 2015 had the effect of bringing the employment contract to an end, they determined the effective date of termination was 23 October 2015.
They also judged the dismissal was unfair because the employee had not been provided with an opportunity to present her case in relation to the concerns about her performance and she had not been notified a possible consequence of her continued poor performance was dismissal. The employer appealed against the decision alleging her effective date of termination was 1 September 2015. If successful, this would result in the claim of unfair dismissal being submitted out of time. The EAT reiterated that the effective date of termination is a statutory concept which can’t be amended by agreement between the parties. Where an employer makes it clear they are withdrawing the contract of employment, this is sufficient to communicate a dismissal and the effective date of termination will be the date of this communication. Applying this to the case, the EAT found the conversation on 1 September 2015 was sufficient to bring the employment to end on this date. It was made clear, in unambiguous language that the employee’s employment within the role of MD was being brought to an end immediately and the employee was summarily dismissed. Therefore, her unfair dismissal claim was brought out of time; however, the case was remitted to the ET to determine whether time limits should be extended.
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| Professional in Payroll, Pensions and Reward | April 2018 | Issue 39
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