Although the date of termination of employment is usually obvious, that is not always the case. In Meaker v Cyxtera Technology UK Ltd, the EAT held that a letter sent by the employer seeking to terminate Mr Meaker’s contract was a dismissal letter contrary to Mr Meaker’s argument that the language used in the letter was neither “clear” nor “unambiguous”, as required by case law.
Basic facts
Mr Meaker, whose job involved heavy lifting, suffered back injuries in August 2016 and again in November 2018, after which he was off work for a long time. When it became apparent that he was unlikely to be able to go back to work, he was told that his contract might be terminated as part of a settlement agreement.
After another conversation, Mr Meaker mistakenly thought that the company had agreed to find out if there was an alternative job that he could do. Instead, it sent him a “without prejudice” letter on 5 February 2020, which he received two days later. In it, the company stated that following a mutual agreement to terminate his employment, his last day would be 7 February, when he would be paid everything he was owed.
The letter also made the offer of an ex-gratia payment, conditional on him signing an enclosed draft settlement agreement. He wrote back the same day rejecting the offer. That letter was then followed by a payment on 14 February which included a payment in lieu of notice and holiday pay entitlement.
Mr Meaker brought a claim of unfair dismissal on 19 June 2020. However, as tribunal claims have to be brought within three months less one day of the effective date of termination (EDT), a dispute arose as to whether he had brought his claim in time. If it was 7 February, then he would be out of time. If, however, it was 14 February, then he was in time.
Tribunal decision
The tribunal found that the letter of 5 February was a dismissal letter and that the effective date of termination was 7 February. As a result, Mr Meaker’s unfair dismissal claim was out of time.
He appealed on the basis that the language used in the letter was neither “clear” nor “unambiguous”, as required by case law. In addition, as his contract was purportedly being terminated, the letter did not give him the correct notice and payment in lieu, which only happened on 14 February.
EAT decision
Rejecting his appeal, the EAT held that the tribunal was right to conclude that the letter sent on 5 February clearly stated that his employment would end on 7 February. Even if this constituted a breach of contract which Mr Meaker did not accept, the effective date of termination for the purposes of the unfair dismissal claim was the date of receipt. In other words, 7 February.
Whilst acknowledging that the opening paragraphs of the letter referred to a “mutual” agreement to terminate the contract which he disputed, it was for the tribunal to objectively determine the facts in the context of the circumstances and matters known to the parties at the time. Whatever the misunderstanding between the parties about the agreement, the letter did not come out of the blue as termination had been discussed. In addition, it clearly and unambiguously set out that his contract was being terminated.
Finally, although the letter was headed “without prejudice”, the tribunal was entitled to treat it as though it had two distinct parts – one relating to the termination of his employment and the other to the settlement agreement.