Augustine Clement

R was employed by Kirklees as a teacher, but was suspended on 21 October 2005 following concerns as to his skills and experience and his relationship difficulties with staff members but he still continued to be paid his full salary.

Disciplinary allegations against him were investigated but have never been adjudicated upon. Disciplinary hearings fixed for 25 April and 13 June 2006 were postponed. The reason for the second postponement was because by June both sides had embarked on discussions of proposals for a settlement of their differences.

The settlement proposals contemplated a compromise agreement providing for (inter alia) the giving of a reference for R, a payment to him in lieu of notice (“PILON”) and an agreed termination date of 31 August.

R’s union representative sent him a draft reference and draft compromise agreement on 14 August. R responded on 24 August with comments on the documents. Negotiations continued. On 13 October R’s union representative emailed him a revised version of the draft compromise agreement. It now provided for a termination date of 31 October and two months PILON. Negotiations continued beyond the 31st October and the Respondent took Mr. R off the payroll while negotiations continued.

The Employment Tribunal held that both sides were agreed (i) that R’s employment had come to an end; and (ii) that it had not been terminated by the giving of notice. The critical question was whether, as the Respondent claimed, the employment terminated on 31 October 2006, in which case R’s claim was out of time; or whether, R’s employment continued beyond 31st October whilst negotiations were on-going.  The employment judge concluded that R’s employment terminated on 31st October.  The EAT reversed this decision and the Council appealed further to the CA.

The CA held that the facts show that the R’s contract was terminated on 31st October when he was taken off payroll. R knew he would not be paid from 31 October was sufficient to show that KMBC had brought R’s employment to an end for EDT purposes. R’s claim was therefore lodged out of time.

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