The Court of Appeal held that in determining the effective date of termination in an unfair dismissal claim, only the statutory provisions were admissible. The parties were not able to agree a retrospective date of termination.
The Facts
Ms Fitzgerald, a lecturer at the University, applied for ill-health retirement in 2000. On 2 March 2001, she received a letter from the University confirming her retirement and a leaving date of 28 February 2001. However, Ms Fitzgerald believed herself in law to have been dismissed and brought a tribunal complaint of unfair dismissal. Ms Fitzgerald issued her claim on 1 June 2001, within three months of 2 March but more than three months from 28 February. The University challenged her application as being out of time bearing in mind that she had accepted a retirement date of 28 February 2001. Ms Fitzgerald argued she could not have agreed a date until actually advised that her retirement application had been accepted.
The Decision: The Court of Appeal
Allowing the appeal, the Court of Appeal held that the effective date of termination of employment was a statutory construct which depended upon what had happened between the parties over time and not on what they might or might not agree to treat as having happened. However, that did not preclude parties from making binding agreements in respect of matters falling outside of the Employment Rights Act 1996 (ERA).
In determining the effective date of termination for the purposes of statutory employment protection, only the statutory provisions were admissible. It was clear from section 97 of the ERA that the effective date of termination could not be varied by agreement between the parties. In the alternative, it was held that the agreement between the parties was void as it fell foul of section 203 of the ERA.
The Court of Appeal concluded that the effective date of termination of Ms Fitzgerald’s employment was not earlier than 2 March 2001 and her claim was presented in time. The matter was remitted to the employment tribunal to determine her claim for unfair dismissal.
Last reviewed 27 August 2004