News & Legal Updates
Sign up to news & legal updates
Time limits are important in employment law. An employee requires to have two years’ qualifying service to pursue a claim for ordinary unfair dismissal. Additionally an employee requires to lodge a claim for ordinary unfair dismissal within three months of the “effective date of termination” (EDT).
When does the clock start ticking for this three month time limit?
The three month time limit commences on the EDT. The EDT varies depending on the situation. The date cannot usually be determined in agreement between the parties, but instead is decided objectively in accordance with the statutory definition. Where a contract is terminated by notice, either by the employer or the employee, the EDT is the end of this notice period. Where a contract is terminated without notice by the employer (e.g. summary dismissal), the EDT is the date on which the termination takes effect.
Does it matter if the employee’s dismissal is communicated verbally or in the post?
The employee requires to have actual knowledge of the termination in order for the notice of dismissal to take effect. The EDT is therefore the date on which the employee becomes aware of his dismissal. This means that, if the employee is advised at the disciplinary meeting that he is being dismissed without notice, this is the EDT. By comparison, if the employee is advised in writing of the summary dismissal, the date on which the employee reads the letter is the EDT.
If a summary dismissal is overturned on appeal, does this vary the EDT?
Last month, the EAT considered the case of an employee who was originally dismissed without notice for gross misconduct. When the employee appealed against his dismissal, the employer substituted the summary dismissal with a decision to dismiss with pay in lieu of notice. The EAT held that, since the decision to dismiss was upheld, the EDT would remain the date on which the employee was summarily dismissed (not after the notice period would have expired). The EAT placed importance on the fact that the appeal outcome letter stated that the EDT would be the previous date of termination and that the only difference to the outcome was the entitlement to notice pay..
Can a claim for ordinary unfair dismissal be pursued after expiry of this three month time limit?
If an employee can demonstrate that it was “not reasonably practicable” to lodge a claim within three months of the EDT, a claim can proceed. However this is a high test for an employee to satisfy. It is for this reason that employers should be clear about an employee’s EDT.
Tips for employers
If you require certainty as to the EDT, you should advise the employee verbally of the decision to dismiss.
If a decision to dismiss is being communicated in writing, an employer may want to hand-deliver the letter of dismissal to the employee or ensure that any email is marked as “read receipt”.
If a decision to summarily dismiss is overturned on appeal, the decision-maker may want to specify the “new” EDT in the outcome letter.Andrew WallaceTrainee Solicitor – Employment Law@EmpLawyerAndywww.blackadders.co.uk
The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.
Blackadders takes all reasonable steps to ensure that the content of this site is accurate and up to date. The site is not, however, intended as a substitute for seeking legal or other professional advice but rather as an informative guide to the services provided by Blackadders and topical legal developments. Site visitors should always seek advice tailored to their specific situation. Consequently, Blackadders accepts no responsibility for any loss or damage suffered by anyone acting or failing to act on the basis of information contained on this site. Downloading of material contained on this site is at the user’s own risk and all necessary virus checks must first be carried out by the user. Blackadders is not responsible for the material found on any web sites linked to this one and links to this site may only be made with Blackadders prior consent.
Blackadders owns the copyright in this blog and all material contained on it. The material on this site may be downloaded for personal use only and must not be altered. Otherwise, Blackadders’ written consent is required before any material on this site is reproduced, copied or transmitted in any way.
Information passed to us via this site is kept confidential and will not be disclosed to third parties except if authorised by you or required by law.
© Blackadders LLP 2011
Members of the Law Society of Scotland. Authorised to conduct Investment Business under the Financial Services & Markets Act 2000 by the Financial Services Authority.
Blackadders Solicitors is a trading name of Blackadders LLP, a limited liability partnership, registered in Scotland No SO301600 whose registered office is 30 & 34 Reform Street, Dundee, DD1 1RJ. Reference to a ‘partner’ is to a member of Blackadders LLP.Back to News & Legal updates