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Effective date of termination

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[Thanks to Justina Togher of Royds RDW, which acted for the Appellant in this case, for sending me details of this decision]

Judgment has been handed down today in Fitzgerald v University of Kent at Canterbury. This is an important Court of Appeal decision concerning the effective date of termination ('EDT') in unfair dismissal claims.

The issue was whether the EDT, which by law sets time running for lodging an originating application in the employment tribunal, is to be objectively determined or can be fixed by agreement between employer and employee. On the facts, the tribunal found the parties had agreed an EDT of 28th February 2001, even though the agreement did not occur until 2nd March. If the EDT was truly 28th February, the claim was out of time. If the true EDT was 2nd March, the claim was presented within time.

In a very readable judgment, Sedley LJ holds that it is not open to the parties to agree to vary the plain wording of the Employment Rights Act. This is both on policy grounds (to prevent the parties agreeing an incorrect EDT to circumvent the one year qualifying period or the upper qualifying age) and on statutory grounds, since it is an attempt to contract out of the Act and is therefore void under ERA s203.

This decision resolves tension between inconsistent EAT decisions, and provides welcome certainty on a difficult point of law.