Rabess v London Fire and Emergency Planning Authority
The Employment Appeal Tribunal (“EAT”) has held that, where the result of an internal appeal is that an employee’s summary dismissal is substituted for dismissal with pay in lieu of notice, the effective date of termination of employment is not changed
The Claimant was dismissed for gross misconduct on 24 August 2012. Following an internal appeal, the finding of gross misconduct was substituted for misconduct. The Claimant was already on a final written warning so the penalty remained dismissal, but the decision maker found he was entitled to six weeks payment in lieu of notice (“PILON”). The Employment Tribunal found that the effective date of termination (“EDT”) was 24 August 2012 and that the claim for unfair dismissal was out of time when the Claimant lodged the claim after 23 November 2012.
On appeal, the Claimant relied in particular on the absence of a contractual entitlement to PILON, which rendered it a breach of contract to dismiss the Claimant without notice unless there was gross misconduct. The EAT held what was important was what actually happened, not what ought to have happened contractually. Therefore the EDT remained 24 August 2012 and the Claimant’s appeal failed.
In Practice
Employment Associate Paul Burton says, "Some employees would argue that the decision in this case was unfair. It would be quite sensible to presume that, since the employer was in breach of contract by paying in lieu of notice, the termination date should have been at the end of the 6 week notice period." However, we believe the EAT came to the conclusion it did on the grounds of certainty. Furthermore, when the Claimant was originally dismissed for gross misconduct the EDT would have been 24 August 2012 and the Claimant could easily have lodged the claim within 3 months of that date.
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.
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