Unfair dismissal claims can only be heard if they're brought within three months of the effective date of termination (EDT) of the applicant's contract of employment.

In Fitzgerald v University of Kent at Canterbury (IDS Brief 753), the Court of Appeal decided that the EDT has to be decided objectively, and cannot be changed to suit the needs of the employer or employee. Or both of them.

Was the employee's claim out of time?

Ms Fitzgerald, who had been employed by the University since 1 July 1995 and suffered from a depressive illness, applied for early retirement on the grounds of ill health in late 2000.

The University approved her request on 22 February and on 2 March 2001 Ms Fitzgerald accepted the offer, which the two parties agreed should be effective from 28 February. On 1 June she brought a claim of unfair dismissal - within three months of 2 March, but more than three months from 28 February.

At a preliminary hearing, a tribunal decided that she had presented her claim out of time, because the EDT was 28 February. The employment appeal tribunal (EAT) agreed and so Ms Fitzgerald appealed to the Court of Appeal.

What did the University argue?

Not surprisingly, the University argued that the termination date was the one that it had expressly agreed with Ms Fitzgerald. It said there was no principle of law that prevented two parties to a contract from agreeing a mutually acceptable termination date.

It relied on the case of Crank v Her Majesty's Stationery Office (1985, ICR 1) in which the EAT held that the EDT was 2 September 1983 - the date agreed by the two parties - although the contract continued till 13 September.

What did Ms Fitzgerald argue?

Ms Fitzgerald, on the other hand, argued that the EAT in Crank was wrong. She submitted that it ran contrary to section 203 of the Act, which prevents individuals from reaching agreements that subvert the legislation, by making them void.

On top of that, she said that such an approach would also mean that employers could agree with employees to extend - or curtail - certain dates. In some cases, this would give employees statutory rights to which they were not entitled, and in other cases deny employees those rights, such as the right to claim unfair dismissal.

What did the Court make of it all?

The Court accepted that there may well be good reasons why employers might propose and employees might agree to such re-dating. The danger, however, is that by doing so, one party secures an agreement under the legislation to which they are not entitled and which the other party may not have meant to concede.

It therefore concluded that the EDT is a 'statutory construct which depends on what has happened between the parties over time and not on what they may agree to treat as having happened'.

This was similar to the approach adopted by the EAT in Caines v Hamon-Lummus Ltd (IDS Brief 565) when it had to identify an employee's start date in order to calculate the period of continuous employment.

And, in any event, the Court said that the applicant's case would succeed on the basis of section 203, as the agreement between the parties purported to limit the operation of the provision of the legislation, and was therefore void.

The Court allowed Ms Fitzgerald's appeal, concluding that the EDT of her employment was not before 2 March 2001, with the result that her complaint was presented in time.