Date of Effective Termination Was the Date Pay was Stopped

In Radecki v Kirklees Metropolitan Borough Council ("the Council") UKEAT/0114/08/DA, the Court of Appeal has held that the effective date of termination of employment ("EDT") can be the date of an act that demonstrates a clear intention to terminate employment. In this case, it was held that stopping the employee's pay during his suspension from work was a suitably unequivocal statement of such an intention.

Mr Radecki was suspended with pay and his disciplinary hearing was postponed while a compromise agreement was negotiated. A draft copy of the agreement provided that Mr Radecki's employment would ‘terminate by mutual consent on 31 October 2006' and Mr Radecki was removed from the payroll on this date. Mr Radecki brought a claim for unfair dismissal on 7 March 2007. In the United Kingdom, unfair dismissal claims must be brought within 3 months of the EDT. The Tribunal found that Mr Radecki's claim was out of time as the EDT had been 31 October 2006 in accordance with the draft compromise agreement which was prepared over four months earlier. On appeal the Employment Appeal Tribunal held that the EDT was 5 March 2007, the date of the dismissal letter from the Council to Mr Radecki. The Council appealed.

The Court of Appeal allowed the Council's appeal as it considered it important that employees were able to clearly establish their EDT. The Tribunal had been wrong to find that there was a consensual termination of the contract on 31 October as a result of the compromise agreement as this had never been finalised as a formal agreement. However, it was held that the Tribunal's finding that Mr Radecki knew he would not be paid from 31 October 2006 was sufficient to show that his employment had been brought to an end for EDT purposes. Mr Radecki's claim was therefore out of time.