In a case concerned with the effective date of termination (EDT) for the purposes of unfair dismissal (Prakash v Wolverhampton City Council), the Employment Appeal Tribunal (EAT) has ruled that:

 

 

 

The circumstances were that on 1 November 2001, Mr Prakash, a consultant with some thirty years’ experience in local government, began working for Wolverhampton City Council as an Executive Director of a community project. The contract was for a fixed term of three years.

 

In early 2003, the Council received complaints about Mr Prakash in relation to incidents of alleged bullying and sexual harassment. Subsequently, after a four day disciplinary hearing, he was eventually dismissed from his post with effect from 23 October 2003. Mr Prakash exercised his right of appeal against this decision but the appeal did not take place until some 16 months after his dismissal.

 

On 15 January 2004 – i.e. within three months of his dismissal but before the internal appeal was heard – Mr Prakash originated a claim to the ET that he had been summarily dismissed on 23 October 2003.

 

When the internal appeal was held on 3 February 2005 – over three months after the 31 October 2004 expiry date of the fixed-term contract – Mr Prakash was told that his appeal had been successful and he would be reinstated. As his contract had now expired, however, he was offered re-engagement in a suitable post and his details were placed on the redeployment register for a six month period ending on 9 August 2005. In fact, Mr Prakash did not apply for any posts and was removed from the redeployment register on 10 October 2005.

 

Mr Prakash sought to amend his original claim form to assert that his EDT was after 23 October 2003. As a precautionary step, he also issued a new claim form asserting that his EDT was on either 9 August or 10 October 2005, but that if the dismissal did take effect on 31 October 2004 (when his fixed-term contract ended) then it was not reasonably practicable for his complaint to have been presented within three months of that date and the amendment had been sought within a reasonable period.

 

Mr Prakash argued that the decision to offer to re-engage him in effect automatically extended his contract of employment to the date of the internal appeal hearing at the earliest. The ET, however, ruled that the expiry date of the original contract was the EDT. Mr Prakash’s original claim of unfair dismissal was therefore premature. With regard to the application to amend the claim form, the ET considered it did not have jurisdiction to consider this as there was no existing claim to amend. Any amendment would create an entirely new cause of action. Accordingly, the ET dismissed the claim based upon the complaint of unfair dismissal having occurred on 23 October 2003.

 

Mr Prakash took his case to the EAT. The EAT agreed with the ET that the resurrection of a fixed-term contract simply reinstates the original contract terms. Otherwise, an employee whose appeal is delayed until after the expiry of his or her fixed-term contract could be in a better position than an employee whose appeal is heard at an earlier date, an outcome which the EAT described as ‘wholly arbitrary and capricious’.

 

With regard to the appeal in respect of jurisdiction to allow an amendment to the claim form, the EAT judged that there was nothing in the rules that expressly prevents such an amendment being allowed to add a cause of action that has come about after the presentation of the original claim form where appropriate.