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Radecki v Kirklees Metropolitan Borough Council

Section 111 of the Employment Rights Act 1996 requires claimants to lodge their claim for unfair dismissal within three months of the effective date of termination. In Radecki v Kirklees Metropolitan Borough Council, the Employment Appeal Tribunal said that the date in a compromise agreement marked “without prejudice” could not constitute the effective date of termination if it had not been signed by both parties.

Basic facts

Mr Radecki started work as a teacher for the local authority in September 2005 but was suspended in October on full pay because of concerns about his skills and experience.

Over the next few months, his union and the authority’s human resources department negotiated a draft compromise agreement (headed “without prejudice” and “subject to contract”) which stated that his employment would end on 31 October 2006.

Although Mr Radecki had still not signed the agreement by that date, he was informed on 1 November that he had been taken off the payroll. On 22 February 2007 he wrote to the authority saying that he rejected the draft compromise. Kirklees wrote back on 5 March saying that it had been mutually agreed that his employment should come to an end on 31 October 2006 and that it was not prepared to reopen negotiations with him.

He then submitted a claim of unfair dismissal on 7 March arguing that his employment had not come to an end until 5 March.

Tribunal decision

Although the employment tribunal judge accepted Mr Radecki’s argument that the compromise agreement could not take effect until he had signed it, he held that Mr Radecki had agreed that his employment should come to an end on 31 October in a “freestanding agreement” that was separate to the compromise agreement.

The judge said that “from 31 October, the fundamental basis of the contract was at an end: the Respondent was no longer paying the Claimant; the Claimant was not required to attend work; the Claimant was not required to attend a Disciplinary Hearing; and even though the School closed, the Claimant’s place of work was not transferred to another School.”

The three month time limit therefore began to run from 31 October and Mr Radecki was out of time for an unfair dismissal claim.

EAT decision

The EAT allowed Mr Radecki’s appeal, saying that the authority could not rely on an agreement that was “subject to contract” and “without prejudice” to show there had been a freestanding agreement which would (just like the compromise agreement) require the consent of both parties. As for the compromise agreement, both parties were free to withdraw from it before it was signed as Mr Radecki had done.

Nor did the EAT accept Kirklees’ argument that events following 31 October amounted to an effective termination of contract. For instance, his removal from the payroll; the fact that he was not required to attend work; and the fact that he was not asked to attend a disciplinary hearing. The EAT said that these all had to be “seen in the context of continued negotiations or the expectation that a compromise in the terms of the draft would be effected.”

It was, therefore not clear “that all remaining elements of the employment relationship” had been severed on 1 November in circumstances that amounted to a dismissal. In the EAT’s view “there was no sufficiently unequivocal statement by the Respondent that could have been regarded as terminating the employment relationship, or the employment contract as having been at an end, until the letter … of 5 March ... “

Mr Radecki’s claim had, therefore, been presented in time and it should proceed to be heard in an employment tribunal.