The effective date of termination 




To establish whether an employee has the minimum two years’ service for a claim for unfair dismissal, the length of time they have 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, which is used to work out whether a 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.


The EDT is a statutory concept. This means that once the EDT has passed, the parties cannot change it. Where the EDT is disputed, the tribunal works it out by looking at all the evidence to decide what happened (Horwood v Lincolnshire County Council [2012] UKEAT/0462/11/RN). Agreements to change an EDT once a dismissal has taken place have no legal effect. This is because by this stage, the employment contract no longer exists. This can result in some surprising conclusions. For example:


A dismissal cannot “take effect” under section 97, ERA until it has actually been communicated to the employee, whether by words or conduct (or at least until the employee has had the chance to find out about it). This was spelled out by the Supreme Court in the case of Gisda Cyf v Barratt [2010] UKSC 41. The court observed that “an essential part of the protection of employees is the requirement that they be informed of any possible breach of their rights”, especially given the very short time limits in the employment tribunal. 


Mere failure to make contact with the employee, even lasting several weeks, will not amount to a dismissal (Sandle v Adecco UK Limited [2016] UKEAT/0028/16/JOJ), see page 314.



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. 


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. 


If the employer gives no notice, the EDT will be the date of the summary dismissal. This will be case 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 (see page 316) 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 of the EDT does not apply to any extra contractual notice entitlement, beyond the statutory minimum (Harper v Virgin Net Ltd [2004] IRLR 390).




The parties can agree to end the contract early, cutting short the notice, in which case, the EDT will be brought forward, and so 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. In fact, waiting 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 in response to the employer’s fundamental breach of contract (see page 318). There is no need for the employer to “accept” a resignation for it to be effective to end the contract. For example: 




If a dismissal is confirmed after an appeal, the EDT remains the date of the original dismissal. 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.




The three-month time limit for launching a claim (which is done by submitting the Acas Early Conciliation (EC) Notification Form , see Chapter 14) begins with the date of dismissal. In other words, the date of dismissal is the first day of the three-month period. 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: