Termination - claim for unfair dismissal to be lodged within three months of effective date of termination of employment - date depending on what had happened between parties, not on what they had agreed

Fitzgerald v University of Kent at Canterbury: CA (Lords Justice Brooke and Sedley and Mr Justice Jacob): 17 February 2004

The employee, who suffered from depressive illness, applied in November 2000 for early retirement on grounds of ill-health.

Her application was approved on 28 February 2001, and on 2 March she retrospectively accepted retirement as from 28 February.

On 1 June she issued proceedings for unfair dismissal, alleging that, being disability-related, her dismissal was unlawful.

By section 111 of the Employment Rights Act 1996 complaints to an employment tribunal had to be lodged within three months of the 'effective date of termination' of the employment as defined in section 97.

The employment tribunal found that the effective date of termination was 28 February as agreed between the parties and that the claim was therefore out of time.

The Employment Appeal Tribunal upheld that decision.

The employee appealed.

Richard Davison (instructed by Royds RDW) for the employee; Michael Duggan (instructed by Furley Page, Canterbury) for the employer.

Held, allowing the appeal, that, although for purposes outside the statute such as tax or accounting considerations the parties were free to make binding agreements, the effective date of termination for the purposes of section 111 of the 1996 Act was a statutory construct depending on what had happened between the parties over time, not on what they agreed was to happen; that the relevant date was 2 March when the applicant had retrospectively accepted retirement; and that, accordingly, her complaint had been presented in time.

Employer failing to consult before dismissing employees - employment tribunal making protective award of maximum period - guidance on making of protective awards

Susie Radin Ltd v GMB and others: CA (Lords Justice Peter Gibson, Laws and Longmore): 20 February 2004

The employment tribunal found that the employer had closed its factory and dismissed 108 employees without having consulted them or the trade union representing the majority of employees, in breach of its obligations under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992.

The tribunal made a protective award against the employer of 90 days, which was the maximum period permitted under section 189 of the Act.

The Employment Appeal Tribunal dismissed the employer's appeal against the length of the protective period.

Sean Jones (instructed by Steeles) for the employer; Philip Mead (instructed by Thompsons, Newcastle upon Tyne) for the complainants.

Held, dismissing the appeal, that the purpose of a protective award was to provide a sanction for breach by the employer of the obligations in section 188 rather than to compensate the employees for loss that they had suffered in consequence of the breach; that the employment tribunal had a wide discretion to do what was just and equitable in all the circumstances, but the focus should be on the seriousness of the employer's default; that the default might vary in seriousness from the technical to a complete failure to provide any of the required information and to consult; that the deliberateness of the failure might be relevant, as might the availability to the employer of legal advice about his obligations under section 188; that how the employment tribunal assessed the length of the protected period was a matter for the employment tribunal, but a proper approach in a case where there had been no consultation was to start with the maximum period and reduce it only if there were mitigating circumstances justifying a reduction to an extent which the employment tribunal considered appropriate; and that, while another employment tribunal might have taken a less serious view of the default in the present case, it was impossible to say that the decision to make a protective award of the maximum period was perverse.