The Effective Date of Termination

The effective date of termination (EDT) is the date the employment contract comes to an end. Employees must understand clearly when the EDT is in order to bring a claim within the time limit.

In a case of summary dismissal (dismissal without notice), the EDT is the date the dismissal takes effect. This is usually the date the employee is told they are dismissed.

No dismissal takes effect until it has actually been communicated to the employee (or at least when the employee has been given a reasonable opportunity to find out about it) (Gisda Cyf v Barratt [2010] UKSC 41).

Where an employee is given notice of dismissal, the EDT is usually the date the notice period expires, even if the employee is told that s/he does not have to come to work during their notice period. However, a payment in lieu of the whole or any part of the notice can bring forward the EDT (and the deadline for any tribunal claim). A termination date can be varied by a clear and unambiguous agreement between the parties (Wedgewood v Minstergate Hull Limited [2010] UKEAT0137).

The EDT is not necessarily the date on the P45, although this may provide evidence of the date. Neither is a P45 proof of dismissal, and an employee does not have to wait to receive one before bringing a claim. If fact, if they do wait they may be beyond the three-month time limit and lose the right to pursue a claim (LB Newham v Ward [1985] IRLR 509).

The employer and employee cannot retrospectively agree on a termination date, after dismissal has taken place. Instead, the date is worked out by looking at what actually happened (Horwood v Lincolnshire County Council [2012] UKEAT/0462/11/RN).

If an employee is dismissed for a reason other than genuine gross misconduct (summary dismissal) and has not been given the statutory minimum notice, the EDT is extended to the date when that notice would have expired (section 97(2), ERA 96). This means that an employee dismissed within a week of reaching the qualifying service for an unfair dismissal claim will still be entitled to bring that claim. However, this extension of the EDT does not apply to contractual notice exceeding the statutory minimum entitlement (Harper v Virgin Net Ltd [2004] IRLR 390).

If a dismissal is confirmed following an appeal hearing, the EDT remains the date of the original dismissal. The appeal does not change the dismissal date or extend the employment in any way. If the dismissal is overturned and the employee is re-instated, the dismissal “vanishes” (Roberts v West Coast Trains [2004] IRLR 788) and continuity of employment is preserved.