Radecki v Kirklees Metropolitan Borough Council EAT/0114/08

unfair dismissal | effective date of termination

The Employment Appeal Tribunal (EAT) has held that the removal of an employee from the payroll while he was suspended and negotiating a compromise agreement did not terminate his employment.

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 he was removed from the payroll. Mr Radecki lodged a claim for unfair dismissal on 7 March 2007.

An employment tribunal had to decide whether or not his 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 tribunal decided that the effective date of termination was 31 October 2006, the date on which Mr Radecki was removed from the payroll. His claim was therefore made out of time.

The EAT disagreed. It said that the draft agreement was subject to contract and there was no agreement on 31 October 2006 to terminate Mr Radecki's employment. It was true that he was not attending work, was not being paid and had not been called in to a disciplinary hearing. But these circumstances were all consistent with him being on suspension and seeking a settlement. It was by no means clear that all the elements of the employment relationship had been severed on 31 October 2006.

Therefore, the 5 March 2007 letter was the first unequivocal statement that the employment relationship had been terminated and this was his effective date of termination. As a result, the claim was made in time.

Case transcript of Radecki v Kirklees Metropolitan Borough Council (Microsoft Word format, 80K) (on the EAT website)

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