Know your limits

The requirement to present a claim for unfair dismissal within three months of the effective date of termination (EDT) of the claimant's employment makes it one of the shortest limitation periods within our legal system. It is, therefore, something which employment lawyers know they must constantly be vigilant in relation to and which justifies more than a moment's reflection on the recent Court of Appeal decision in Kirklees Metropolitan Council v Radecki [2009] EWCA Civ 298.

The case provides an accretionary elucidation on the meaning of the EDT, but more importantly it provides a cautionary tale to those trying to reach a compromise, the moral of which is that with the focus on reaching a settlement, the EDT, with its triggering of the very short limitation period, should not be allowed to slip by unnoticed.

Mr Radecki was employed by Kirklees as a school teacher but, after only two months, they were sufficiently dissatisfied with his performance to begin disciplinary proceedings, which became suspended as the parties, Mr Radecki through the agency of his union, tried to reach a settlement. The negotiations were so protracted that, although he had worked for only two months, his suspension on pay was long enough for him to acquire sufficient continuity of employment to qualify to bring an unfair dismissal claim.

The parties had provisionally agreed an EDT of 31 October 2006, but this was always expressed to be 'subject to contract' and so legally ineffective. Kirklees, nevertheless acting on the proposed agreement, deleted R from their payroll on that date. The negotiations continued, finally breaking down more than three months after Mr Radecki's removal from the payroll '“ at which point he began proceedings. The question before the court was whether he was out of time.

Section 97 of the Employment Rigths Act 1996, which defines the EDT, provides for termination with and without notice but in either case the termination is invariably express: here, it was not. What the court made clear is that termination could be effective simply by the conduct of removing Mr Radecki from the payroll. Despite the employment judge at first instance and the EAT not approaching it that way, surely this is correct; given that Mr Radecki was suspended from work, it is hard to see what was left of the work/wage bargain to constitute a continuation of the contract of employment.

Though helpful in developing our understanding of the meaning of the EDT, the case is perhaps more important because of the good practice to which it points. There are lessons here whether acting for the employer or the employee.