Employment Law E-Bulletin

Cases: Oct 08

Radecki v Kirklees Metropolitan Borough Council

This case concerns the definition of the effective date of termination (EDT) in the context of compromise agreement negotiations.

Mr Radecki was a teacher who worked for the Respondent Council. His employment began in September 2005 and he had only been in the post for a few weeks before he was suspended on full pay on 21st October 2005.

Questions were raised about the skills and experience of Mr Radecki and allegations were made in relation to his honesty. The Council also had concerns about Mr Radecki’s difficult relationships with some other staff members.

The date for the disciplinary hearing in relation to these matters was postponed a number of times and throughout 2006 negotiations continued between the Council and Mr Radecki’s Union representative with regards to agreeing a compromise agreement, which would have brought the employment to an end by consent.

The draft compromise agreement was drawn up and passed between the parties for amendment and approval. In the preamble to the agreement it stated that Mr Radecki’s employment was to terminate on 31st October 2006. The compromise agreement was at all times marked ‘without prejudice and subject to contract’ and was never signed by the parties. In October 2006 Mr Radecki (with his knowledge) was removed from the Council’s payroll, in preparation for the termination of his employment at the end of the month.

However, Mr Radecki never signed the compromise agreement and some time later, in February 2007, he contacted the Council to state that he was unhappy with the terms of the agreement. The Council replied on 5th March stating that as far as they were concerned the employment was at an end and had ended on 31st October 2006.

In response to this Mr Radecki lodged a claim for unfair dismissal on form ET1 on 7th March 2007.

The tribunal held that the ET1 was out of time, as the employment had terminated on 31st October 2006 when he was removed from the payroll. The Employment Judge held that the preamble to the compromise agreement was a freestanding agreement and it clearly stated that the employment was to end on the 31st October. The Judge was of the opinion that this statement should not be covered by the without prejudice and subject to contract protection that covered the actual compromise agreement.

The EAT overturned this decision and held that the preamble was covered by the without prejudice and subject to contract status, and that the preamble was not a free standing agreement, but part of the compromise agreement.

It was held that removing Mr Radecki from the payroll was not enough to terminate his employment and that the termination was only effective from the date on which the Council unequivocally stated that the employment was at an end (the date of the Council’s letter in which it was stated that the employment was at an end). Therefore Mr Radecki was in time and was able to continue with his claim for unfair dismissal.

Employers should take this case as a warning that an employee cannot be considered to have left their employment until a compromise agreement is completed and signed. The Council should not have removed Mr Radecki from the payroll until it was sure that the termination date of 31st October 2007 would stand.

If you require any assistance with the drafting and negotiating of compromise agreements, please do not hesitate to contact the employment team for further advice.

Hart v Chief Constable of Derbyshire

This recent case deals with the issue of what amounts to a ‘reasonable adjustment’ for a disabled employee. It was reported on in the December issue of the e-bulletin when the case was in the EAT and that decision has now been confirmed by the Court of Appeal.

This case importantly places a limit on the reasonable adjustments that the employer can be expected to make with regards to the standards/qualifications expected of employees.

To recap the facts of this case, Ms Hart was a probationary constable who was unable to complete her police training due to a back problem (which amounted to a disability). The back problem prevented Ms Hart from completing the training because she was physically unable to deal with confrontational situations.

Ms Hart was dismissed as she did not meet the requirements for new constables under the Police Regulations 2003.  Prior to dismissal the employee was offered a staff job which she turned down.

Ms Hart admitted at the ET that no ‘reasonable adjustment’ made would enable her to be a fully operational police constable. Ms Hart argued that there was no need for her to be able to complete all of the duties of a police officer and that if officers become disabled during the course of their employment (after they had qualified) then they are placed on restricted duties, she argued that the same concessions should be made for her.

The Chief Constable drew an analogy between the police force and qualification bodies and argued that if the qualification requirements were changed for Ms Hart then this would set a precedent for changing them for others, thus changing the standard expected of police officers.

The Tribunal and the EAT accepted the distinction between qualified and probationary officers and held that the ability of the probationary officers to face confrontational situations was an ‘irreducible minimum’ and that no adjustments should be required.

The Court of Appeal has upheld this decision.

The position still remains that if an employer has a disabled employee, it should make reasonable adjustments to assist them in carrying out their role. However, as this case highlights, if an organisation sets down qualification standards for a workforce then lowering the standards necessary to qualify will not be a reasonable adjustment that an employer needs to make.

For further information contact Burnetts' employment law team on 01228 552222.

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