Cosmeceuticals Ltd v Parkin

 

The effective date of termination (EDT) is the date when the employee’s continuous employment ends. This can be either the end of their notice period or, the date that the employee was summarily dismissed without notice. The employee has 3 months less a day from the effective date of termination, plus any period of ACAS Early Conciliation, which effectively stops the clock – to bring an unfair dismissal claim before the Tribunal.

The question in today’s case is:

When an employee is given notice after they have been summarily dismissed, does that move the effective date of termination (EDT) from the summary dismissal date to the end of the notice period?

Cosmeceuticals Ltd v Parkin

Ms. Parkin, the Claimant, was the Managing Director of Cosmeceuticals Ltd, the Respondent. The Respondent had concerns about her performance and that the Claimant, who held the most senior role below Board Level, was not visible enough within the office.

The performance issues and lack of visibility stemmed from the Claimant having difficult personal circumstances at home. It was agreed she would take a two-month paid sabbatical. During this sabbatical, the Respondent’s concerns over performance increased. The Respondent told the Claimant that she would not be returning to work on 1st September. She was then put on garden leave and served notice, which would expire on 23rd October.

The Claimant submitted an unfair dismissal claim more than 3 months after 1st September but less than 3 months from 23rd October. The Respondent argued the Claimant was summarily dismissed on 1st September and that her claim was out of time because it was more than 3 months after the EDT. The Claimant held the EDT was when her notice expired on 23rd October and the claim was in time.

The ET found that the Claimant’s EDT was the latter date when her notice expired and the claim was within time. The Respondent appealed and the EAT accepted the appeal. It held that the EDT was 1st September as that was the date of summary dismissal, albeit that such a dismissal was by conduct that is the Claimant was removed from the post. The Claim was therefore bought out of time.

The takeaway point:

No, the date of the employee’s summary dismissal is the effective date of termination, even if the dismissal is by conduct that is removed from the position. This applies even if the employer should have given notice but failed to do so, or, in this case, served notice after dismissal. An interesting case but one that could have been avoided had notice not been served after the date of dismissal. The one point that does not seem to have been argued is that if the Claimant was dismissed on 1 September, under the rules on calculating service her service in employment ran to 23 October. It does not seem satisfactory to have a service date for EDT purposes that is different to the service date for continuous service purposes.