UK: Fired Or Still Hired?

Last Updated: 27 July 2009
Article by Juliet Bawtree

With the echoes of Sir Alan Sugar's "You're fired" still ringing in our ears after the latest series of 'The Apprentice', most employers would be forgiven for thinking there is little scope for doubting or challenging when an employee's employment comes to an end.

However, a recent Court of Appeal (CA) decision in the case of Radecki v Kirklees Metropolitan Borough Council shows that the position may not be quite so straightforward. Problems can arise if negotiations about a termination package are taking place and the employer has a 'last date of employment' in mind, only to find that negotiations fail at the last minute.

The unfortunate result may be ambiguity followed by unnecessary and expensive litigation in order to work out the exact date of termination.

Failed compromise

Mr Radecki had been employed as a teacher by the Council and was suspended with pay in October 2005. A draft compromise agreement was negotiated which provided that Mr Radecki's employment would terminate by mutual consent on 31 October 2006. The Council removed Mr Radecki from its payroll from that date.

On 22 February 2007, Mr Radecki told the Council that he was unhappy with the terms of the draft agreement. In a letter to Mr Radecki dated 5 March 2007, the Council asserted that his employment had ended by mutual consent on 31 October 2006 after it had acted in good faith, relying on Mr Radecki's advice that he would sign the draft agreement.

Mr Radecki brought a claim for unfair dismissal. As a preliminary issue, the employment tribunal had to determine whether or not Mr Radecki's claim was out of time. A claim must be presented to an employment tribunal within 3 months of the effective date of termination (EDT). Where the employer or employee gives notice, the EDT is the date on which the notice expires. Where the dismissal is without notice, it is the date on which the termination takes effect. The tribunal found that Mr Radecki's EDT was 31 October 2006, so his claim in March 2007, was out of time.

Mr Radecki appealed to the Employment Appeal Tribunal (EAT) which concluded that Mr Radecki's EDT was not the date of his removal from the payroll but was 4 months later when the employer wrote to him stating that the employment relationship had ended. The EAT decided that the removal from the payroll was done in the expectation that the draft agreement would be executed; it had not been done to terminate Mr Radecki's employment.

The EAT also found that there must be an unequivocal act which could be regarded as terminating the employment. It concluded that in Mr Radecki's case, this was not until the Council's letter of 5 March. Another factor influencing the EAT's decision was that when compromise agreements are being negotiated and are expressed as 'without prejudice and subject to contract', either party can withdraw at any time before the agreement is executed. On this basis, the EAT decided there could not be sufficient clarity for a dismissal.

The Court of Appeal

The CA disagreed, concluding that what mattered was whether or not Mr Radecki was aware that his employment had been brought to an end on 31 October 2006.

The CA determined that because Mr Radecki had not been paid for 4 months, it is unclear what he could possibly have thought that his employment status was. More importantly there was no explanation as to why he did not complain about not being paid if he genuinely thought he was still employed. The CA found that stopping pay was the Council's clear expression of its intention to bring the employment to an end. This was borne out by the fact Mr Radecki was not required to attend work or any disciplinary hearing.

The CA decided from the facts that both parties had acted as if Mr Radecki's employment had ended on 31 October 2006 and Mr Radecki's claim was out of time.


This case is clearly limited to its own facts and one might say that the employer was lucky - the CA could quite possibly have gone the other way in their decision making and the EAT's reasoning was just as persuasive. Cases where the only remaining part of the employment relationship left intact is the right to receive pay, are going to be rare. Despite this, there are some practical lessons that employers can learn from the case.

Practical steps for employers

  1. The CA's decision underlines the importance of a clear, open and unambiguous statement terminating the employment. We recommend setting it out in a letter specifying the date employment ends and clarifying the position on any appeals process available to the individual.
  2. Following on from the termination letter, make all other termination arrangements as soon as possible, for example, making a payment in lieu of notice if appropriate and issuing the P45. This case emphasises how important it is for employers to be aware that the member of staff will remain an employee until the EDT.
  3. Make sure that any standard form compromise agreement the organisation uses, is marked "without prejudice and subject to contract" when sent out in draft form.
  4. Mr Radecki's case turns on its own facts and how employers proceed will depend on the specific circumstances of their own matter. If termination is going to be contingent on a compromise agreement being signed, it is advisable to agree this in writing with the employee before negotiations start. If this option is taken, employers should ensure that no action is taken on the compromise agreement until it is signed.
  5. Mr Radecki's case shows that an intention to enter into a compromise agreement based on an agreed termination date, may not necessarily be enough to secure termination on that date. In Mr Radecki's case, the circumstances were such that the CA decided Mr Radecki must have been aware that his employment had ended.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.