Labour & European Law Review Weekly Issue 396 19 November 2014
Although the outcome of an internal appeal can alter the effective date of termination, the Employment Appeal Tribunal (EAT) held in Rabess v London Fire and Emergency Planning Authority that it will only do so if the internal appeal is successful. Whilst the internal appeal in this case reduced the finding of gross misconduct to misconduct, the effective date of termination remained the same.
Mr Rabess was employed as a firefighter with effect from 24 January 2006. His contract of employment stated that he was entitled to one week's notice for each year of continuous employment, but made no provision for payment in lieu of notice.
He was summarily dismissed for gross misconduct on 24 August 2012. At his appeal hearing on 9 January 2013, the charges were found to constitute misconduct rather than gross misconduct. However, as he was already on a final written warning, the penalty remained dismissal. His employer wrote to him on 18 January 2013, confirming that his last day of service was 24 August 2012 and that he was entitled to six weeks’ pay in lieu of notice.
Mr Rabess then lodged an unfair dismissal claim on 3 January, which was outside the three month time limit, assuming that the date of termination was 24 August. Mr Rabess argued that once he was found not guilty of gross misconduct, it was a breach of contract for his employer to dismiss him without notice. His date of termination should have moved forward by six weeks as he was entitled to six weeks’ notice.
Relying on the House of Lords decision in West Midlands Co-operative Society Ltd v Tipton, the employment judge did not agree. In that case, their Lordships found that if an appeal is not successful and the original decision of ‘instant dismissal’ is affirmed, then the dismissal still takes effect on the original date.
In their letter dated 28 August 2012 confirming the decision to dismiss, the fire authority expressly confirmed that his last day of service was 24 August 2012. There could be no doubt, therefore, that the outcome of the appeal had not changed the effective date of termination as set out in the appeal outcome letter of 18 January 2013.
Mr Rabess appealed on the basis that once he was found not guilty of gross misconduct, it was a breach of contract for his employer to dismiss him without notice given that he had no contractual entitlement to pay in lieu of notice.
The EAT held that, although the outcome of an internal appeal could alter the effective date of termination, it had not done so in this case. It could therefore be distinguished from the decision in Hawes & Curtis Ltd v Arfan in which the internal appeal expressly changed the date of termination. In that case, during the interim period, the employer continued to pay the employees. Those payments did not reflect notice pay nor ex-gratia payments and were made via the PAYE system.
Although the fire authority in this case reduced the disciplinary sanction from gross misconduct to misconduct it expressly confirmed that Mr Rabess had been dismissed and told him to expect a letter confirming that decision. The letter explicitly stated that the last day of service was still 24 August 2012. The fact that his employer made a payment in lieu of notice did not change the effective date of termination and his date of dismissal remained the same as it had done in the case of Robert Cort and Son Ltd v Charman.
For the purposes of the effective date of termination, the EAT made clear that it is “what actually happens which is important, not what ought to have happened”.
This case shows that when considering the effective date of termination it is wise to err on the side of caution and rely on the earlier date of dismissal.