What constitutes a dismissal?

The recent case of Meaker v Cyxtera Technology Ltd UK EAT/2023/17 is interesting for three reasons.  Firstly, it gives further guidance on what can constitute a dismissal; secondly, it reaffirms the importance of observing time limits for making claims; thirdly it affirms the court’s ability to sever non privileged information contained within a document that also contains privileged information.

Mr Meaker suffered form a physical injury that stopped him from carrying out his duties.  After some consultation he was sent a ‘Without Prejudice’ letter on 5 Feb which said that by mutual agreement his employment would terminate on 7 February.  The letter went on to explain that there would be one week’s payment in lieu of notice and the payment outstanding holiday pay.  There was also a settlement agreement attached which offered an enhanced termination payment.

Mr Heaton issued a claim for unfair dismissal. Taking the ACAS EC period into account, the last date on which his claim could be filed was 13 June.  The claim was filed after that date but before the 20 June (which would have been the deadline had there not been a payment in lieu of notice).

His claim was dismissed by the Employment Tribunal as being out of time.  Mr Heaton appealed. The question for the EAT was whether the dismissal expressed to be by mutual agreement within the Without Prejudice letter was effective without the employee’s acceptance of it. 

The EAT found that the intention of the employer was clear and there had been a summary dismissal with an effective PILON clause. Acceptance by the employee was not required for Employment Rights Act purposes.  It was clear that the 5 February letter constituted a dismissal (effective 7^th February) and the claim was out of time.

The WP nature of the letter was neatly sliced and diced by the EAT which came to the view that it would consider the text that was relevant to the dismissal as being not privileged but the settlement agreement details as being WP.

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Authors

Victoria von Wachter

Call 1997

Related areas

Employment

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