Effective Date of Termination – Unfair Dismissal / Time Points

James Williams

In Meaker v Cyxtera Technology UK Ltd the claimant was employed in a heavy manual night role. He suffered back injuries in August 2016 and November 2018. Following the second of these he was off work for an extended period.

At a certain point it was agreed that limitations on his ability to do heavy work were likely to be permanent.

An application for income protection payments, and an appeal in that regard, were unsuccessful.

There followed a conversation with an HR manager in which the respondent indicated that it was considering terminating the claimant’s employment, and the possibility of a settlement agreement was raised. On 20 January 2020 the claimant had a further conversation with the HR manager. The tribunal found that the claimant believed that further enquiries would thereafter be made about alternative employment, and the manager had not made it clear to him that they would not.

On 5 February 2020 the respondent sent the claimant a letter which he received by 7 February. This was headed “without prejudice”. It opened by stating that it had been agreed that there would be a mutual termination of employment. It went on to state that the claimant’s last day of employment would be 7 February, he would be paid up to that date, the amounts of holiday pay, and of the payment in lieu of notice he would receive, and that he would be sent his P45. The letter also offered a further ex gratia payment, conditional on the claimant signing an enclosed draft settlement agreement. The letter was followed by a payment on 14 February which the claimant was told reflected his payment in lieu of notice and holiday pay entitlement.

The tribunal found that the letter of 5 February was a dismissal letter, that the effective date of termination was 7 February 2020 and that the claimant’s subsequent claim of unfair dismissal, was, on that basis, presented out of time. It declined to extend time. The claimant appealed.

The Employment Appeal Tribunal held:
(1) On the assumption that the tribunal was correct that the 5 February 2020 letter was a termination letter, even if it was a repudiatory breach that was not accepted by the claimant at common law, the effective date of termination for the purposes of the unfair dismissal claim was the date of receipt of that letter. The tribunal had not erred in so deciding.

(2) The tribunal had also not erred in construing the letter of 5 February as a dismissal letter, notwithstanding that the opening paragraphs referred to what was said to have been an agreement that there would be a mutual termination, which agreement had not in fact been reached, and that the letter was headed “without prejudice”. The tribunal properly concluded that the letter unambiguously communicated that the respondent had decided to proceed to unilaterally terminate the employment with effect on 7 February 2020, and that only the offer of an ex gratia payment was conditional upon the claimant signing a settlement agreement.

(3) The tribunal had also properly concluded that the claimant had not shown that it was not reasonably practicable to present his unfair dismissal complaint in time.
As all grounds of appeal failed, the appeal was dismissed.

Case: Mr_G_Meaker_v_Cyxtera_Technology_UK_Ltd__2023__EAT_17.pdf (publishing.service.gov.uk)

James Williams – Solicitor

James Williams

I am a qualified Employment Law and HR Solicitor. I specialise in acting for schools and advise on all aspects of employment law and HR including attending employee meetings, advising senior leaders, conducting redundancy consultations, drafting contracts of employment, advising on policies and procedures and negotiating settlement agreements.