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Employment Appeal Tribunal Considers Wrongful Dismissal

Meredith Hurst Wednesday, January 15, 2014

The Employment Appeal Tribunal has held that a teacher employed by a community school was wrongfully dismissed when a local authority sent her a letter informing her of the decision of the board of governors of the school to terminate her employment. The letter arrived too late to give the teacher the period of notice required under her contract with the consequence that the teacher was entitled to a payment in respect of the full notice period under her contract (Birmingham City Council v Emery UKEAT/0248/13/SM).

The judgment itself may at first glance appear to have limited relevance for many employers as the teacher's contract and its termination were regulated by statutory provisions, namely theSchool Staffing (England) Regulations 2009. However, the judgment is also interesting because Mr Justice Mitting considers the potential consequences of the Supreme Court's decision inGeys v Societe Generale, London Branch [2012] UKSC 63on the effective date of termination for unfair dismissal purposes under section 97 of the Employment Rights Act 1996.Geysdetermined that where an employer wrongfully terminates a contract of employment the termination is not effective if the employee does not accept the repudiatory breach of contract that results from this. Therefore the time limit for bringing an unfair dismissal claim under the Employment Rights Act 1996 until the end of what would have been the contractual period of termination, notwithstanding that the employee's employment might have effectively ceased. The anomaly was not explored by the Supreme Court inGeysbecause it was not required to consider a claim for unfair dismissal.

The EAT inBirmingham City Council v Emeryrecognised that it was possible that the effect ofGeyson unfair dismissal law was to produce a confusing and difficult situation, in that employment tribunals would have to consider not only the date an employee was informed that they were being dismissed by the employer, which on existing authority is when there is effective termination of employment for unfair dismissal purposes, but also whether the employer was in fact contractually entitled to dismiss the employee on that date. Thus there might in fact be different dates of termination for contractual purposes and for the purposes of an unfair dismissal claim. The EAT stated that it was not necessary for it to decide the point because the Claimant inEmerywas not bringing an unfair dismissal claim, but if there was an anomaly it was for Parliament to reconcile.

There are likely to be interesting developments in relation to this in future cases. In any event, the case is a reminder that when terminating employment it is always extremely important to consider what the contract requires the employer to do in order to dismiss the employee. The consequences of getting this wrong could be both complicated and costly.