The applicant was given notice on 3rd February 1983 terminating his employment on 28th February 1983. The question arose on appeal whether the date of the notice or the date when he left employment was the relevant date.
Held: With a discriminatory dismissal, time does not run until the notice of dismissal has expired and the employment ceased: ‘ The act complained of here is the dismissal of the applicant and the short point is: for the purposes of the Race Relations Act 1976, did that dismissal occur on 3 February, when notice was given, or 28 February, when the employment was terminated? We have been referred, in this context, to Dedman v. British Building and Engineering Appliances Ltd. [1974] I.C.R. 53, which dealt with the effective date of termination of a contract, and we find that decision and, indeed, definitions which occur in the Employment Protection (Consolidation) Act 1978 of no help to us in this case, because Dedman’s case is dealing with a different section, and the definitions in the Act of 1978 cover matters on which the Race Relations Act 1976 is silent. It appears to us that we have to approach the construction of the Act of 1976 by considering what was the mischief that Parliament was intending to cover by providing that it was unlawful to discriminate against an employee by dismissing him.
Putting it quite shortly, it seems to us that the mischief which Parliament was intending to cover by those provisions was that of a person finding himself out of a job because of racial or other discriminatory grounds. If that be right (and it appears to us that it is), then the act complained of is the termination of employment and accordingly the effective date for considering when time starts to run is the date when the man finds himself out of job rather than the date when he is given notice.’
Balcombe LJ said: ‘That is sufficient to dispose of this appeal but, in case it goes elsewhere and in order to give proper respect to the able arguments which were presented to us by both counsel in this case, it is right that we should deal with the two other grounds of appeal. The second ground of appeal was that section 68(7)(b) of the Act of 1976 provides that any act extending over a period should be treated as done at the end of that period. Mr Cofie, for the applicant, argues that the act of dismissal extended over the period between the giving of notice and the date when the notice expired. Accordingly, under that subsection, it should be treated as having occurred at the end of the period.
We accept Mr Jeremy’s submissions on that ground of appeal both that it is inconsistent with the earlier argument which we have accepted – although that does not of itself render the earlier argument the less effective – but secondly this was not an act done over a period. It was an act of dismissal. Either that act took place when the notice was given or, as we have held, when the employment terminated. So we reject that ground of appeal.’
Judges:
Balcombe LJ
Citations:
[1984] ICR 348
Statutes:
Jurisdiction:
England and Wales
Employment, Discrimination
Updated: 16 May 2022; Ref: scu.616315
