Extending the effective date of termination
The recent case of Lancaster & Duke Ltd v Wileman UKEAT/0256/17/LA has confirmed that the effective date of termination is not extended by the statutory notice period if the employer was entitled to dismiss the Claimant summarily on the grounds of gross misconduct.
Read the full text of the judgment and a summary [here]().
The Employment Tribunal Remedies Handbook 2018/19 (General Editor Benjamin Gray, Littleton Chambers and foreword by Judge Brian Doyle, President Employment Tribunals (England & Wales)) has a whole entry devoted to the effective date of termination including several examples to illustrate how to determine the date for the purposes of the qualifying period and of course to make sure that the correct gross weekly pay is used in the calculation of the basic award. The fourth example confirms what the EAT said in Lancaster.
The examples are included here:
The claimant is given notice and it is worked out in full The EDT is the date of expiry of the contractual notice period, or the statutory notice period, whichever is the later (s97(1)(a) ERA 1996).
*Contractual notice has been given, the claimant is working during the notice period and then is summarily dismissed before the expiry of the contractual notice period, but after the statutory notice period would have expired *The EDT is the date of dismissal, and not the date when contractual notice would have ended. Relevant authorities dealing with a range of such factual circumstances include: M-Choice UK Ltd v A UKEAT/0227/11/DA, Harper v Virgin Net Ltd  EWCA Civ 271 and Parker Rhodes Hickmott Solicitors v Harvey UKEAT/0455/11/SM.
The claimant is summarily dismissed, but the employer was not entitled to do so and the claimant is entitled to statutory notice under s86 The EDT is the date that the statutory notice would have ended (s97(2) ERA 1996). Note: the EDT is only extended by the statutory notice period, not any contractual notice period.
*The claimant is summarily dismissed and the employer was entitled to do so due to the conduct of the employee *The EDT is the date on which termination takes effect (s97(1)(b) ERA 1996).
The claimant has been put on garden leave The EDT is the date the notice period expires.
The claimant is dismissed with a payment in lieu of notice The contract ends when the PILON clause is successfully put into effect, with the EDT being the date of termination of the contract (see Société Générale, London Branch v Geys  IRLR 122).
The employee resigns in response to a repudiatory breach by the employer The EDT will normally be the date of expiry of the statutory notice period which the employer would have had to give if they had given the employee notice of termination on the day the employee resigned.
*The claimant resigns on notice following which there is correspondence/ discussions between the parties *The EDT is the date on which the notice period expires. The claimant's unequivocal notice of resignation is unaffected by subsequent discussions/ correspondence between the parties and the claimant cannot subsequently unilaterally withdraw or extend the notice period (see Wallace v Ladbrokes Betting and Gaming Limited UKEAT/0168/15/JOJ).
*The employer and employee agree on a date when the employment will terminate *The EDT will be the date of the agreed termination, even if the employee had already received notice but then later agreed to an earlier termination date (Palfrey v Transco Plc  IRLR 916).
The employer summarily dismisses an employee but on appeal varies the date of dismissal to a later date The EDT will be the later date as varied by the appeal decision (see Hawes & Curtis Ltd v Arfan & Anor UKEAT/0229/12/JOJ;  ICR 1244).
The dismissal was without notice but the employer pays PILON The EDT is the date of the summary dismissal (see Rabess v London Fire & Emergency Planning Authority UKEAT/0029/14/JOJ). The EDT is not extended by the PILON.
*Termination of fixed term contract which is not renewed *The EDT is the last day of the fixed term.
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Published: 05/07/2018 15:30