Mr J Shepherd v Parks of Hamilton (Townhead Garage) Ltd: 4101040/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4101040/2025
Between
Mr J ShepherdClaimantParks of Hamilton (Townhead Garage) LimitedRespondent
Before
Employment Judge A StrainMs L Kenmure (instructed by Solicitor) for claimantMs C Greig (instructed by Solicitor) for respondentDate 19 October 2025
JUDGMENT
The Judgment of the Employment Tribunal is that the claimant’s effective date of termination of employment was 23 January 2025 and that accordingly his claim was presented in time.
REASONS
[1]The claimant was represented by Ms L Kenmure, solicitor. He asserted a claim of unfair dismissal and unlawful deductions.[2]The respondent was represented by Ms C Greig, solicitor.[3]The parties had lodged a bundle of documents with the Tribunal for the purposes of the open preliminary hearing extending to 49 pages.[4]The sole issue for determination of the Tribunal at the OPH was whether or not the claim had been presented in time. This involved a determination of when the effective date of termination (EDT) of the claimant’s employment was.[5]The respondent contended that the EDT was 17 January 2025 and the claimant contended that it was 24 January 2025.[6]It was not in dispute that the claimant had lodged his ET1 on 23 May 2025; notified ACAS on 1 February 2025; ACAS had issued a certificate dated 6 March 2025.[7]The Tribunal heard evidence from the claimant, Marc Christie (MC), General Sales Manager, and Colin Graham (CG), Group HR Manager for the respondent.[8]Both parties made submissions at the conclusion of the evidence. Findings in fact[9]Having heard the evidence and considered the documentary evidence before it the Tribunal made the following findings in fact.[10]The respondent is a private family-owned business specialising in the motor trade. The motor group includes new and used car sales, hire and leasing, and aftersales and servicing.[11]The claimant was employed by the respondent from 31 January 2022 as a Car Sales Executive within the respondent’s Honda dealership in Inverness.[12]The claimant had a contract of employment (Pages 30-37).[13]On 17 January 2025 the claimant had a telephone conversation with MC (who was at home on leave) in which the claimant indicated an intention to resign by 31 January 2025.[14]MC contacted Craig Brown (his line manager) immediately after the conversation with the claimant. MC and Craig Brown agreed that the claimant’s employment should be terminated.[15]MC went to the dealership and met with the claimant along with Shane Ward (Sales Manager). In that meeting MC told the claimant that his employment was being terminated and that he would be paid until 31 January 2025. In the meantime he was to return the keys to his company car, not to contact customers or colleagues and not to attend the dealership. He was to be available to the respondent as and when required. He told the claimant that he was on garden leave.[16]On 20 January 2025 MC sent an internal email to payroll setting out monies due to the claimant which referred to PILON and a leaving date of 17 January 2025 (Page 41). This email was not shared with the claimant.[17]On 22 January 2025 the claimant met with a CAB Adviser to obtain advice regarding what had happened. He told the CAB Adviser that he had been put on garden leave, had to return his company car and would be paid until 31 January 2025. This is confirmed in the Adviser’s Note (Page 48).[18]The CAB Adviser gave advice to the claimant regarding the employment tribunal process.[19]The CAB Adviser also advised that the claimant’s contract of employment did not contain garden leave provisions and as such he may have been effectively dismissed.[20]The claimant believed his employment would end on 31 January 2025 at this point.[21]On 23 January 2025 the claimant had a telephone conversation with CG regarding monies due to him. During the course of that conversation CG told the claimant that he was being paid in lieu of notice.[22]The claimant believed his employment would end on 23 January 2025 at this point.[23]The claimant’s P45 stated a leaving date of 17 January 2025 (Page 38).[24]The claimant contacted ACAS on 1 February 2025.[25]The ACAS conciliation period ended on 6 March 2025.[26]The claimant lodged his ET1 on 23 May 2025. The relevant law Effective Date of Termination (EDT)
The relevant law
[27]The starting point for a Tribunal is section 111(2)(a) of the Employment Rights Act 1996 (ERA). The provides that “an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal—(a) before the end of the period of three months beginning with the effective date of termination, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.[28]The EDT is determined in accordance with section 97 of ERA which provides: Effective date of termination. (1) Subject to the following provisions of this section, in this Part “the effective date of termination”— (a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires, (b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect, and (c) in relation to an employee who is employed under a limited-term contract which terminates by virtue of the limiting event without being renewed under the same contract, means the date on which the termination takes effect.[29]The EDT cannot be earlier than the date he has knowledge of the dismissal (McMaster v Manchester Airport plc [1998] IRLR 112, EAT).[30]The onus is on the employer to communicate to the employee the fact and date of the dismissal: Widdicombe v Longcombe Software Ltd [1998] 35 ICR 710. The effective date of termination is a wholly statutory concept, to be determined by applying the wording of sub-s (1); it cannot be altered simply by agreement between the parties: Fitzgerald v University of Kent at Canterbury [2004] IRLR 300. Extrinsic matters (such as receipt of the P45) are not relevant even if in practice they are important: Newham London Borough v Ward [1985] IRLR 509.[31]Where dismissal is communicated to the employee in a letter, the effective date of termination is not retroactive to the date that the letter was written, posted or delivered, but is the date when the employee either reads the letter or reasonably had the opportunity of knowing about it: Brown v Southall and Knight [1980] ICR 617, which was approved by the Supreme Court in Gisda Cyf v Barratt [2010] ICR 1475, in which it was held that in applying the test of the reasonable opportunity to read the letter a subjective approach is to be taken taking into account the claimant's circumstances and being ‘mindful of the human dimension in considering what is or is not reasonable to expect of someone facing the prospect of dismissal from employment.’[32]There is an implied term that written notice runs from the date it is read, or if earlier, the date the employee had a reasonable opportunity of reading it (Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood [2018] UKSC 22). Submissions[33]Both parties made oral submissions. The claimant[34]The claimant’s solicitor submitted that the Tribunal should start by considering the wording of section 97 ERA. This was a case where section 97(1)(a) applied on 17 January 2025.[35]What was of importance was the claimant’s knowledge under reference to McMaster v Manchester Airport plc [1998] IRLR 112, EAT.[36]Reference was also made to Fitzgerald v University of Kent at Canterbury [2004] IRLR 300 and Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood [2018] UKSC 22.[37]On 17 January 2025 the claimant’s knowledge and belief was that he had been put on garden leave on 17 January 2025 and that his employment would terminate on 31 January 2025. His state of knowledge and belief changed after his conversation with CG on 23 January 2025.[38]The Tribunal was asked to prefer the evidence of the claimant. His evidence was credible, reliable and supported by the note of the conversation with the CAB on 22 January 2025.[39]The EDT was 23 January 2025 and the claim had been presented in time. The respondent[40]The respondent’s solicitor submitted that the evidence of the respondent’s witnesses should be preferred and accepted. The term “garden leave” was not used by MC or CG and that it was such a complex legal term it was highly unlikely to have been understood never mind used.[41]The claimant could have been in no doubt that his employment was terminated on 17 January 2025. The handing over of his keys on 17 January 2025 and being sent home were consistent with that. Furthermore, his P45 clearly indicated 17 January 2025 as his leaving date.[42]MC had made it clear to him on 17 January 2025 that his employment was being terminated with immediate effect.[43]The fact he was paid until 31 January 2025 was immaterial as he had been paid in lieu of his notice.[44]The claimant’s employment terminated on 17 January 2025 and his claim was presented out of time. Discussion and decision[45]The Tribunal started by considering the terms of section 111 (2)(a) and 97 (1) of ERA.[46]The Tribunal considered that the onus was on the respondent to communicate to the claimant the fact and date of the dismissal: Widdicombe v Longcombe Software Ltd [1998] 35 ICR 710.[47]The Tribunal also had regard to the cases of McMaster v Manchester Airport plc [1998] IRLR 112, EAT, Fitzgerald v University of Kent at Canterbury [2004] IRLR 300 and Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood [2018] UKSC 22.[48]The Tribunal agreed with the claimant’s solicitor’s submission that what was of importance was the claimant’s knowledge in the circumstances.[49]The claimant’s knowledge involved a consideration of, and finding, in relation to the facts as to what he had been told on 17 January 2025 as the dismissal had not been communicated in writing.[50]The evidence of the claimant was at odds with the evidence of MC and CG. Both MC and CG were categoric that the term “garden leave” had not been and would not have been used buy them. MC said he hadn’t heard of the term until reading it in the Tribunal papers. MC had not told the claimant not to contact customers or colleagues and not to attend the dealership. He had not told him he was to be available to the respondent as and when required.[51]MC’s evidence was that he had made it clear to the claimant that his employment was ending with immediate effect. He accepted that he had not said he was paying in lieu of notice. He had told the claimant that he would be paid until the end of the month.[52]The claimant said MC told him that his employment was being terminated and that he would be paid until 31 January 2025. In the meantime he was to return the keys to his company car, not to contact customers or colleagues and not to attend the dealership. He was to be available to the respondent as and when required. He told the claimant that he was on garden leave.[53]The claimant had access to and sight of his P45 which stated his leaving date was 17 January 2025.[54]The Tribunal found the note from the CAB on 22 January 2025 to be determinative of the issue. The note clearly corroborated the claimant’s evidence that he was told he was on garden leave and would be paid until 31 January 2025.[55]The claimant told the CAB this within a few days of 17 January 2025 and at a time when issues of time bar were of no consequence. The Tribunal could see no reason for the claimant to have made this up. The Tribunal preferred and accepted the evidence of the claimant on this point as it was clearly corroborated by the note.[56]MC and CG were proceeding on their recollection of events. What had been said to the claimant had not been documented. The internal email of 20 January 2025 referring to PILON did not confirm what MC had or had not said to the claimant on 17 January 2025.[57]MC’s evidence that he had not told the claimant he was being paid in lieu of notice and that the claimant was being paid until 31 January 2025 was also consistent with and supportive of the claimant’s evidence.[58]The Tribunal accordingly find that as at 17 January 2025 the claimant’s knowledge was that his employment was to terminate on 31 January 2025. The EDT was to be calculated in accordance with section 97(1)(a).[59]The Tribunal considered and found that the position changed on 23 January 2025 following the conversation between the claimant and CG. CG made it clear to the claimant that he was being paid in lieu of notice on that date. The claimant’s knowledge changed on that date and he was aware that his employment was being terminated on 23 January 2025. 23 January 2025 was the EDT.[60]The Tribunal note that there was some confusion between the witnesses as to the exact date of the conversation between the claimant and CG. It was either on 23 or 24 January 2025. The Tribunal found, on the evidence, that the conversation took place on 23 January 2025.[61]ACAS Early Conciliation was commenced on 1 February 2025 (Day A) and the Early Conciliation Certificate was issued on 6 March 2025 (Day B). The original time limit expiry date was 22 April 2025. The days of the limitation period not to be counted (the day after Day A to Day B inclusive) are 33 days. The revised time limit expiry date was 25 May 2025. The claim was accordingly lodged within the statutory time limit as extended by the ACAS conciliation period. 19 October 2025