Unfair dismissal: “Without Prejudice” letter effectively dismissed employee and claim was out of time

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Unfair dismissal: “Without Prejudice” letter effectively dismissed employee and claim was out of time

Published 14 March 2023

An employee was effectively dismissed even though the letter purporting to dismiss him was marked “without prejudice” and wrongly referred to termination by “mutual agreement”. 


An employee must lodge an unfair dismissal claim within three months (extended to participate in ACAS early conciliation) of the ‘effective date of termination’. Confusingly, the effective date of termination for statutory claims is not necessarily the same as the termination date for contractual claims. 

Mr Meaker was employed by Cyxtera Technology UK Ltd in a heavy manual role. He suffered back injuries which resulted in a long absence on sick leave. He agreed with Cyxtera that he was not likely ever to be able to do heavy work again. He was told that the company was thinking about terminating his employment, and a settlement agreement was mentioned. 

A few days later, on 20 January 2020, Mr Meaker had another conversation with HR, which led him to believe that alternative employment was being looked into. However, he received a letter on 7 February 2020 headed “without prejudice”. The letter stated that his employment would terminate by mutual agreement, that the last day of his employment was 7 February, and that he would receive payment in lieu of notice and untaken holiday and would be sent his P45.  The letter also outlined Cyxtera’s offer of an ex-gratia payment and enclosed a settlement agreement.

No settlement was reached and on 14 February 2020 the payments in lieu of notice and untaken holiday were received into Mr Meaker’s bank account. 

Mr Meaker claimed that he had been unfairly dismissed. If the effective date of termination were (as Cyxtera argued) 7 February 2020, Mr Meaker would have been out of time to submit his claim.  If (as Mr Meaker argued) the effective date of termination had been 14 February 2020, the claim would have been in time. 

The employment tribunal held that the effective date of termination was 7 February 2020. Mr Meaker’s claim was therefore out of time. Mr Meaker appealed to the EAT.  Among other things, he argued that the tribunal should have taken into account the contractual termination date (which is not necessarily the same as the effective date of termination for statutory purposes), and that if the letter received on 7 February was a termination without notice in breach of contract, that breach was not accepted. He also argued that the letter was insufficiently clear and unambiguous to give effect to a dismissal. 

The EAT dismissed his appeal.

Key points for employers are:

  • Where an employee is dismissed summarily without giving the contractual notice period, the effective date of termination is the date of the summary dismissal, whether or not the employer made a payment in lieu of notice.
  • Clear and unambiguous language must be used. The language should be interpreted to reflect what an ordinary reasonable employee would understand by the words used.
  • The dismissal letter must be construed in the light of the facts known to the employee at the date they receive the letter.
  • The letter wrongly referred to a mutual agreement and was marked “without prejudice”.
  • The EAT had to pause to consider whether this meant that the language in the letter was sufficiently clear and unambiguous.  

However, it was found that the language was sufficiently clear and unambiguous taking into account that:

  •  the termination did not come out of the blue;
  • the letter could be read in two distinct parts, one dealing with termination and the termination payments to which he was entitled, and the other part making a without prejudice offer;
  • the letter clearly set out the last day of employment and the payments in lieu of notice and holiday were calculated using that date; and
  • there was no suggestion that termination was a matter for discussion or negotiation.


Employers should give notice of termination in writing, and make sure that the language is clear and unambiguous.  If a “without prejudice” offer is made, the offer should be made in separate correspondence or the letter should be clearly marked as being in two separate parts, one of which being headed “without prejudice”.

Employers should also check contracts of employment to ensure that they follow any contractual notice requirements (for example, that notice should be in writing and sent to the employee’s home address). 

Employers should also be aware that the effective date of termination for the purpose of calculating length of service may, in some circumstances, have to take into account the employee’s statutory notice period. 

Mr G Meaker v Cyxtera Technology UK Ltd [2023]


Hilary Larter

Hilary Larter


+44 (0)113 251 4710

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

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