The effective date of termination

To establish whether an employee has the minimum two years’ service for a claim, the length of time the employee has worked is calculated until the date of dismissal, called the Effective Date of Termination (EDT).

It is crucial that members understand clearly the EDT of their employment. The EDT is used to work out whether a dismissal claim is within the tribunal time limit and many cases have been lost due to misunderstandings about the EDT.

The rules for calculating the EDT are found in section 92(6) ERA 96 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, temporary contract, the EDT is the date the contract ends.

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

Where an employee is given notice of dismissal, the EDT will be the date the notice period expires, even if the employee is not expected to attend work during the notice period. However, employers can bring forward the EDT by making a payment in lieu of notice — whether or not they have the contractual right to do this (Rabess v London Fire and Emergency Planning Authority [2014] UKEAT/0029/14/JQJ). This will have the effect of bringing forward the deadline for any tribunal claim.

The parties can agree between themselves to end the contract early, cutting short the notice. Again, where this happens, the EDT will be brought forward, and so will the deadline for a tribunal claim. Any agreement to end the contract early must be clear and unambiguous (Wedgewood v Minstergate Hull Limited [2010] UKEAT0137).

The EDT is not necessarily the date on the P45, although this may be evidence of the EDT. A P45 is not proof of dismissal and an employee does not have to wait to receive a P45 before bringing a claim. In fact, if they do wait, they may go beyond the three-month time limit for their claim and lose the right to pursue it (LB Newham v Ward [1985] IRLR 509).

The EDT is a statutory concept governed by the law. Once the EDT has passed, nothing the parties do or agree can change it. Instead, the date is worked out by looking at what actually happened (Horwood v Lincolnshire County Council [2012] UKEAT/0462/11/RN). Agreements to change the EDT after the dismissal have no legal effect. This is because by this stage, the employment contract has ceased to exist.

In a constructive dismissal claim, the EDT is the date of resignation in response to the employer’s fundamental breach of contract (see page 278). There is no need for an employer to “accept” the resignation for it to be effective

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

If a dismissal is confirmed following an appeal, the EDT remains the date of the original dismissal (Rabess v London Fire and Emergency Planning Authority [2014] UKEAT/0029/14/JQJ). The fact of the appeal does not change the dismissal date or extend the employment in any way. If the dismissal is overturned, the dismissal “vanishes” automatically (Roberts v West Coast Trains [2004] IRLR 788) and continuity of employment is preserved.