Kirklees Metropolitan Borough Council v Radecki [2009] EWCA Civ 298 CA

unfair dismissal | effective date of termination

The Court of Appeal has held that the removal of an employee from the payroll while he was suspended and negotiating a compromise agreement was sufficient to establish an effective date of termination for unfair dismissal purposes.

Mr Radecki, who was a teacher, was suspended on full pay after concerns were raised about his performance and his relationships with colleagues. A disciplinary hearing was suspended while a compromise agreement to terminate his employment was negotiated. A draft compromise agreement was put together stating that employment would "terminate by mutual consent on 31 October 2006". It was expressed to be "without prejudice" and "subject to contract". On 31 October 2006, Mr Radecki was removed from the payroll, although the agreement had not been finalised. He informed his employer on 22 February 2007 that he was unhappy with the terms of the agreement. His employer wrote back to him in a letter dated 5 March 2007 asserting that his employment had terminated on the date that he was removed from the payroll. Mr Radecki lodged a claim for unfair dismissal on 7 March 2007.

The issue at stake was whether or not Mr Radecki's claim had been lodged within the time limit for bringing an unfair dismissal claim (ie within three months of the effective date of termination). The Employment Appeal Tribunal, overturning an employment tribunal decision that the effective date of termination was 31 October 2006, found that the 5 March 2007 letter was the first unequivocal statement that the employment relationship had been terminated and this was Mr Radecki's effective date of termination.

The Court of Appeal disagreed. The effective date of termination can be the date of an act demonstrating a clear intention to terminate employment. It found that the act of stopping the employee's pay while he was suspended was a sufficiently unequivocal statement of such an intention. As a result, the claim was out of time.

Case transcript of Kirklees Metropolitan Borough Council v Radecki (on the BAILII website)

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