Key Facts
- •Claimant employed in heavy manual night role, suffered back injuries in 2016 and 2018.
- •Following second injury, claimant was off work for extended period; limitations on his ability to do heavy work deemed likely to be permanent.
- •Claimant's application for income protection payments was unsuccessful.
- •Respondent indicated consideration of terminating claimant's employment; possibility of settlement agreement raised.
- •On February 5, 2020, respondent sent 'without prejudice' letter stating mutual termination agreement (which hadn't been reached), setting termination date as February 7, 2020.
- •Letter offered ex gratia payment conditional on signing settlement agreement; payment made on February 14, 2020.
- •Claimant's unfair dismissal claim, filed June 19, 2020, was deemed out of time by the tribunal.
Legal Principles
Effective date of termination (EDT) for unfair dismissal claims is the date of receipt of the termination letter, even if the dismissal constitutes a repudiatory breach not accepted by the employee.
Robert Cort v Charman [1981] ICR 816 and Rabess v London Fire and Emergency Planning Authority [2017] IRLR 147
A communication of dismissal must be clear and unambiguous; it must clearly communicate that the writer is terminating employment, with effect on an identified date.
Stapp v Shaftesbury Society [1982] IRLR 326 and Chapman v Letheby and Christopher Ltd [1981] IRLR 440
In determining the EDT under section 97, the tribunal is not required to apply common law contractual principles of termination.
Robert Cort v Charman [1981] ICR 816 and Rabess v London Fire and Emergency Planning Authority [2017] IRLR 147
Whether a document amounts to a dismissal is a matter of objective determination, considering circumstances known to the parties.
Birch and Humber v University of Liverpool [1985] ICR 470 (CA)
The tribunal must consider whether it was reasonably practicable for the claimant to present their unfair dismissal complaint in time.
Section 111 ERA 1996
Outcomes
Appeal dismissed.
The tribunal correctly determined the EDT as February 7, 2020, based on the receipt of the termination letter. The letter was deemed clear and unambiguous despite being headed 'without prejudice' and referencing a purported mutual agreement that did not exist. The tribunal also correctly found that it was reasonably practicable for the claimant to file his claim in time.