The effective date of termination 





To establish whether an employee has the minimum two years’ service for a claim for unfair dismissal (one year in Northern Ireland), their length of service is calculated up to the date of dismissal, called the Effective Date of Termination (EDT).





It is crucial that members understand clearly the EDT of their employment, which is used to work out whether an unfair dismissal claim is within the tribunal time limit. Many cases have been lost due to misunderstandings about the EDT. 





The rules for calculating the EDT are found in section 97, ERA and are as follows:


• if an employee is dismissed with notice, the EDT is the date the notice expires;





• if an employee is dismissed without notice (summary dismissal), the EDT is the date the dismissal takes effect; and





• if an employee is working under a fixed-term contract, the EDT is the date the termination takes effect.



See also Notice: page 332.


The EDT is a statutory concept. This means that once the EDT has passed, the parties cannot change it. Where an EDT is disputed, the tribunal works it out by looking at all the evidence (Horwood v Lincolnshire County Council [2012] UKEAT/0462/11/RN). Agreements to change an EDT once a dismissal has already taken place have no legal effect. (For a good example of the implications of this, see the case of Cosmeceuticals Limited v Parkin [2017] UKEAT/0049/17/BA). 
 



A dismissal cannot “take effect” until it has been communicated to the employee, by words or conduct, or at least until the employee has had a reasonable chance to find out about it (Gisda Cyf v Barratt [2010] UKSC 41). 


Where employees are placed on “garden leave” until the end of their notice, the EDT will be the date the notice expires, even though the employee is not attending work during this period. 



In general, employers can bring forward an EDT by making a payment in lieu of notice whether or not they have the contractual right to do this. This will also bring forward the deadline for any tribunal claim. See Pay in lieu of notice: page 333. 


If the employer gives no notice, the EDT will be the date of the summary dismissal, even if the employer had no right to dismiss summarily because there was no gross misconduct (Robert Cort & Son Limited v Charman [1981] IRLR 437). 



Except in cases of gross misconduct, if an employer gives less than the full statutory notice, the EDT is automatically extended to the date the notice would have expired had full statutory notice been given (section 97(2), ERA 96). This extension does not apply to any additional contractual notice (Harper v Virgin Net Ltd [2004] IRLR 390).





The parties can agree to end the contract early, cutting short the notice. If so, the EDT will be brought forward, as will the deadline for a tribunal claim. Any agreement must be very clear (Wedgewood v Minstergate Hull Limited [2010] UKEAT0137).





A P45 is not proof of dismissal and the EDT is not necessarily the date on the P45. There is no need to wait to receive a P45 before bringing a claim and doing so may result in the claimant missing the claim deadline and losing the right to pursue it (London Borough of Newham v Ward [1985] IRLR 509).





In a constructive dismissal claim, the EDT is the date of resignation (see page 338). An immediate resignation will end the employment contract immediately. There is no need for an employer to "accept" the resignation (Secretary of State for Justice v Hibbert [2013] UKEAT/0289/13/GE). 




If a dismissal is confirmed following an unsuccessful appeal, the EDT is still the date of the original dismissal. The appeal does not change the dismissal date or extend the employment in any way. If a dismissal is overturned on appeal, the dismissal vanishes automatically (Roberts v West Coast Trains [2004] IRLR 788) and continuity of employment is preserved (along with the right to any back pay, accrued holiday and pay rises). See also Appeals, page 351.





The date of dismissal counts as the first day of the three-month period for bringing a claim for unfair dismissal (see Chapter 14). The correct way to calculate the three-month period is to take the day immediately before the dismissal date and to go forwards by three months. For example: