In circumstances where an employer has summarily dismissed an employee but the employee is appealing against the dismissal, there can be uncertainty as to the date of termination of the employment.
In the case of Governing Body of Wishmorescross School v Balado (UK EAT/0199/11), the EAT held that an employee, who was told that her summary dismissal would not be put into effect unless either she decided not to appeal or the appeal was unsuccessful, was dismissed with notice. In most formal disciplinary procedures, the lodging of an appeal does not prevent the original dismissal from taking effect. So, for example, if an employee’s employment has been terminated summarily, the fact that no appeal has been filed will not change the EDT. However, the employers in this case had adopted a different approach and therefore argued that notice had not actually been given. The individual presented a complaint to the employment tribunal before the EDT, believing that she was under notice. A tribunal does not have jurisdiction to entertain a claim where the claim has been presented prior to the EDT. However, an exception exists where an employee is on notice and the complaint is presented after notice was given but before the EDT. It was held that in cases such as this, where the employee was put on notice of summary dismissal conditional on the appeal being unsuccessful, the employee would be considered as being dismissed with notice for the purposes of submitting an employment tribunal claim before the EDT.
In another recent case of M-Choice UK Limited v Allders [UKEAT/0227/11] the EAT held that where an employer dismisses an employee with notice and then summarily dismisses the employee during the notice period, the EDT was the date of summary dismissal. The effect in this case was that the employee was deprived of the right to bring an ordinary unfair dismissal claim as she did not have the required one year’s service at the date of summary dismissal. Although it was permissible for the employer to do this, the EAT has remitted the case to another tribunal to decide the reason for the employee’s dismissal. If the reason for the dismissal was that the employee had asserted her statutory right to bring an unfair dismissal claim, the employee would then have a claim for automatic unfair dismissal which is not subject to a qualifying period.
Employers also need to be careful to ensure that the contract is terminated in accordance with its terms. In the case of Société Générale, London Branch v Geys  IRLR 482, the individual was informed that his employment was being terminated summarily by payment in lieu of notice. After being told that his employment would be terminated with immediate effect, the employee sought further information regarding the amount of the termination payment and there was some negotiation on this. Money was subsequently paid into the individual’s bank account but he was not advised that the payment had been made or what it constituted. The employee then sought to affirm his contract of employment and stated that he had not accepted the repudiation of his contract. The High Court had originally held that the contract terminated when the employee had received unequivocal confirmation from his employer that the payment in lieu of notice monies had been paid into his bank and that it was exercising the payment in lieu of notice clause. The Court of Appeal overturned this decision, holding that the payment of notice monies was effective to bring the contract to an end since the express term of the payment in lieu of notice clause in the contract was clear. However, this does mean that an employee need not necessarily know that the contract has been terminated in order for the termination to be effective. It should therefore be made clear in the PILON clause that the payment of the PILON has the effect of terminating the contract.