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. The EDT 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 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 contract, the EDT is the date the contract ends.



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


There must be some action by the employer (either words or conduct) to communicate the dismissal to the employee, in order for it to take effect. A 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).


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. 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 also bring forward the deadline for any tribunal claim. 



If an employer gives less than the full statutory notice (except in cases of genuine gross misconduct), the EDT will be automatically extended to the date when that notice would have expired (section 97(2), ERA 96). This extension of the EDT does not apply to contractual notice exceeding the statutory minimum entitlement (Harper v Virgin Net Ltd [2004] IRLR 390).



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



The EDT is not always 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 (London Borough of Newham v Ward [1985] IRLR 509).



The EDT is a statutory concept. Once the EDT has passed, the parties cannot change it. The tribunal will work it out by looking at all the evidence to decide exactly what happened (Horwood v Lincolnshire County Council [2012] UKEAT/0462/11/RN). Agreements to change an EDT following dismissal have no legal effect, because by this stage the employment contract no longer exists.



In a constructive dismissal claim, the EDT is the date of resignation in response to the employer’s fundamental breach of contract (see page 347). There is no need for the employer to “accept” a resignation for it to be effective to end the contract. The risks of misunderstanding how the EDT is calculated are illustrated by this case: 



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 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 13) 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: