United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R WEDGEWOOD (The Appellant in Person)
For the Respondent	MR JAMES GIVENS (Representative)


 


SUMMARY

JURISDICTIONAL POINTS – Worker, employee or neither

The Claimant employee was given notice that his contract would expire on 1 December 2008.

By a letter dated 26 November 2008 the Respondent employer informed the Claimant employee "I write to confirm that you can be released today and will still be paid up to and including your notice period date Monday 1^st December 2008". The Claimant employee counter-signed this.

The Claimant employee submitted his application to the Employment Tribunal by email on 28 February 2009. The Respondent employer contended that this was outside the prescribed three month period because the effective date of termination of the Claimant's contract of employment was 26 or 28 November 2008.

The Claimant submitted that the letter of 26 November 2008 did not alter the "effective date of termination".

The Employment Judge upheld the contentions of the Respondent employer and held that the effective date of termination of the Claimant's employment as stipulated in section 97 of the Employment Rights Act 1996 was 26 November 2008.

The Claimant appealed

Held:

1. The appeal was allowed because by absolving the employee from working his period of notice, the effective date of termination was not altered (Lees v Greaves (Lees) Limited [1974 2 All ER 393 applied).

2. The effective date of termination could be altered by the parties expressly agreeing to do this (Palfrey v Transco plc [2004] IRLR 916 applied and TBA Industrial Products Limited v Moreland [1982] IRLR 331 distinguished) but that had not occurred in this case as the letter of 26 November 2010 did not alter the effective date of termination.


 


THE HONOURABLE MR JUSTICE SILBER

I Introduction

1. This appeal, which raises the issue of whether the "effective date of termination" of a contract of employment can be altered if after a period of notice has been stipulated or agreed but before the end of that period is reached, the employee is absolved from the duty to serve out all or part of his period of notice. By a decision of Employment Judge Molyneaux sent to the parties on 25 August 2009, it was held that the "effective date of termination" of a contract of employment was thereby altered. In consequence, the Tribunal had no jurisdiction to consider claims made by Roger Wedgewood ("the Claimant") against Minstergate Hull Ltd ("the Respondent") because the Claimant had not brought his claim within the prescribed 3 month period. By a further decision sent to the parties on 25 January 2010, an application to review the earlier decision was rejected by Employment Judge Molyneux.
2. The Claimant appeals and he contends that the "effective date of termination" once fixed cannot be altered merely by absolving the employee from his duty to work during all or part of his notice period. The Respondent contends that the "effective date of termination" would be altered in those circumstances and indeed was altered in this case.

II The facts

3. The background to the decisions of the Employment Tribunal is that the Claimant was employed as an accountant by the Respondent, who holds a motor car franchise. On 20 October 2008, a memorandum was issued to the Claimant and three other members of staff of the Respondent and an associated company advising them that two redundancies within the accountancy department would probably be necessary because of the difficult trading conditions in the motor retail trade.
4. On the same day, the Claimant was sent a letter written by Mr Steve Forster, the General Manager of the Respondent, informing him that he had been identified as somebody who might be declared redundant and he was told there would be a meeting on the following day.
5. The meeting was postponed until 23 October 2008 when the Claimant's trade union representative could attend. The minutes of the meeting show that when the reason for the proposed redundancy was explained, the Claimant was asked if he had any proposals or suggestions that would avoid his redundancy. There were also some discussions about whether there were any possible or alternative vacancies but at the meeting, the Claimant asked whether he would be required to work his notice period. He was told he would be so required but an earlier release would be considered.
6. A further consultation meeting was held on 3 November 2008 when the trade union representative of the Claimant was again present and at this meeting, the Claimant indicated that he had no proposals to put forward. The Claimant was given verbal notice of redundancy and he was advised of his right of appeal. The representative of the Claimant asked if the Claimant could be released at an earlier date than the expiry of the notice period and there was some discussion on this point. The Claimant said he would like to "finalise ties as soon as possible". At the meeting, it was also confirmed the Claimant was entitled to have time off for interviews but that it would be appreciated if the Claimant could inform the Respondent if he wished to do this.
7. On 4 November 2008, the Claimant was sent a letter confirming his selection for redundancy and giving him notice expiring on 1 December 2008. He was also informed of the financial arrangements relating to his redundancy. When the Claimant explained that he wished to leave earlier than the last working day of 1 December 2008, the Respondent said they would try to accommodate his request and would discuss it with him.
8. The Claimant worked for most of his notice period but on the morning of 26 November 2008, the Claimant asked the General Manager Mr Forster if he could leave early because he was uncomfortable having to continue to work and he explained that he had completed all his work. A letter was then sent to the Claimant which he counter-signed and to which I will refer in great detail in paragraphs 16 and 17 below.
9. An arrangement was reached between the Respondent and the Claimant whereby the Claimant would be released on 26 November but he would be paid up to the expiry of his notice period on 1 December 2008. The Claimant was asked to return on Friday 28 November 2008 at 1pm for a handover meeting with the accountancy firm which would take over his work. The Claimant duly signed a copy of the letter confirming that he would attend at that time. The Claimant duly attended on 28 November 2008 and stayed for an hour.
10. The Claimant was prepared to give up his car on 28 November 2008 but an agreement was reached with the Respondent that he could keep the car for the weekend as he had no other transport. It was indicated that it would be collected on Sunday 30 November but that was not possible and it was eventually collected on 1 December 2008 at about 5pm.

III The issues

11. The Claimant submitted his ET1 to the Employment Tribunal on-line on 28 February 2009. That meant that if "the effective date of termination" of his employment was before 1 December 2008, it would have been submitted outside the statutory time limit of three months and so the Employment Tribunal would then have no jurisdiction to consider the claim of unfair dismissal unless it was not reasonably practicable for him to have presented the complaint by the end of the period of three months (section 111(2) (b) of the Employment Rights Act 1996).
12. The issue on this appeal is, therefore, whether the "effective date of termination" was on 1 December 2008 as the Claimant contends the position to be. The Respondent's case that "the effective date of termination" was either on 26 November 2008 or 28 November 2008.
13. The relevant statutory provision is section 97 of the Employment Rights Act 1996,which states that:-

"(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"

14. It is common ground that prior to the discussions and the letter of 26 November 2008 to which I will refer in greater detail in paragraphs 16 and 17 below, the "effective date of termination" of the Claimant was 1 December 2008. Indeed the letter of dismissal of 4 November 2008 stated that the Claimant was entitled to receive four weeks notice up to, and including, 1 December 2008 and that:-

"You are entitled to receive 4 weeks notice up to and including 1^st December 2008. You will be required to work your notice therefore, your last day of work will be Monday 1 December 2008".

15. It was also stated in that letter:-

"We are aware that you would prefer to leave earlier than your last working day of 1^st December. As discussed, we will try and accommodate your request the best we can and will discuss this with you within the next few days. Please be aware that should you wish to leave prior to this date we require notice in writing of 2 weeks. If you leave without giving the required notice and without our consent you may lose entitlement to your remaining period of notice and redundancy pay".

16. It was against that background that a meeting took place on 26 November 2008 which led to a letter being written by the Respondent to the Claimant upon which both sides rely. It states that:-

"With reference to our conversation today and your confirmation that all required work is up to date, I write to confirm that you can be released today and will still be paid up to and including your notice period date of Monday 1^st December 2008. However, as previously discussed, I respectfully request that you return on Friday 28^th November at 1pm for a 'handover' meeting with Nick King from the outsourcing company.

I would be grateful if you would sign a copy of this letter confirming that you will return on Friday at 1pm for the handover meeting".

17. The Claimant then counter-signed the note at the bottom of the letter which read "I the undersigned confirm that I will return to Minstergate Hull Limited on Friday 28 November at 1pm for a 'handover' meeting with the outsourcing company". It is clear that by this letter the parties agreed that the Claimant was relieved from carrying out any work thereafter other than attending for the 'handover' meeting on 28 November but the issue is whether that brought forward the "effective date of termination".
18. The Employment Judge held that the effective date of termination had altered to 26 November 2008. Her reasoning was that :-

"21.The Tribunal looked at the Employment Appeal Tribunal Decision in Palfrey v Transco plc 2004 IRLR 916 where a very similar situation arose. The claimant in that case was given notice of redundancy commencing on 25 February 2003 and expiring on 19 May of that year. He was given the option to bring the date forward when Transco would pay him in lieu of notice. There was agreement between the parties and the claimant received a letter confirming that the notice period would run until 31 March when his employment would be terminated and he would receive money in lieu of notice.

22. The Employment Appeal Tribunal agreed with the Employment Tribunal that the later letter specifying the earlier termination date amounted to a withdrawal of the original notice and a substitution by way of a fresh notice of an earlier period of termination. They confirmed that account must be taken of what has happened between the parties over time. Where there is a variation of the notice, the notice expires on the new date as does the Contract of Employment.

23. In those circumstances the Effective Date of termination is 26 November 2008 which requires that the claimant should have submitted his ET1 by 25 February 2009.

24. In his written submissions the claimant argues that account should only be taken of "non-weekend days". However there was no authority for that. A "month" means a calendar month and the time expired on 25 February 2009."

19. The Claimant appeals contending that the effective date of termination had not been brought forward to 26 November 2008 merely because he was relieved from his duty to work.

IV Discussion

20. My starting point is the decision of the Court of Appeal in Lees v Arthur Greaves (Lees) Limited [1974] 2 All ER 393 in which an employee was dismissed on 1 October 1971 but given six months notice and it was arranged that he should work out that notice until 31 March 1972. However, on 28 January 1972 the employee was prevailed on to finish and he did finish while accepting two months pay in lieu of working during February or March 1972. He received his holiday pay, insurance cards and P45 on 28 February 1972 and he signed on at the employment exchange sometime after 31 March 1972. Subsequently he brought a claim for unfair dismissal and the employer argued amongst other things that if there was a dismissal, then the effective date of termination was 28 January 1972. The statutory provision relating to the meaning of the effective date of termination contained in section 23(2) of the Industrial Relations Act 1971 was identical in material terms to that in section 97 of the Act with the earlier provision referring to "the date on which that notice expires" while the present legislation refers to "the date on which the notice expires".
21. The Court of Appeal held by a majority (Lord Denning MR and Scarman LJ) that the effect of the agreement was simply to waive the duty to work and the contract remained in force until 31 March 1972. Lord Denning said of the employee "he was still employed but not required to work for the remaining period from 28^th January to 31^st March" (page 297). Stamp LJ dissented holding that the contract was effectively terminated on 28 January 1972.
22. A similar decision was reached where the notice was shortened at the request of the employee in TBA Industrial Products Limited v Morland [1982] IRLR 331 in which the employee received a letter informing him that his employment would be terminated for reasons of redundancy on 2 August 1980. The letter continued "it may be that you wish to leave before 2.8.80 and should you wish to leave early please complete the attached form and hand it to your department manager". The employee filled in the form and requested to leave on 7 June 1980 and his request was accepted. He then made a claim of unfair dismissal. His claim would have been out of time if the effective date of termination had been 7 June 1980.
23. A majority of the Court of Appeal (Waller LJ and Sir John Willis) held that it was not out of time and that his effective date of termination was 2 June 1980 as first there could be no variation of the effective date of termination which was stated in the notice letter and second that this date could only be altered by the employer withdrawing the original notice and giving a new one (ibid [1982] IRLR 332 paragraphs 11 and 12). This analysis meant that no subsequent agreement permitting an employee to leave before his previously stipulated date of termination can alter the effective date of termination but Ackner LJ dissented.
24. It is noteworthy that no authorities were cited in that case and in particular that a number of relevant cases such as Tunnel Holdings v Wolf [1976] ICR 387 and CPS Recruitment Limited v Owen and the Secretary of State for Employment [1982] IRLR 54 had not been cited.
25. It was for that reason that Burton P giving the judgment of this Appeal Tribunal in Palfry v Transco plc [2004] IRLR 916 (which was a case on which the Employment Judge relied in the present case) held that a change of the effective date of termination could be effected by a simple variation. In that case, the effective date of termination was brought forward by agreement from 19 May 2003 to 31 March 2003 and the pay given in lieu of notice was only in respect of the expedited date of termination.
26. The facts in the present case are different because although the Claimant was released from his obligation to work, the letter of 26 November 2008 stated that the Claimant "would still be paid up to and including your notice period date of Monday 1 December 2008". Thus unlike in the Palfry case, the letter of 26 November 2008 meant that there was no change to the date of termination but merely that the employee was released from working, but significantly as in the Lees case the employee still received pay up to the original date of termination. Also the letter specifically referred to "your notice period date of Monday 1 December 2008" and that shows that this date, which was the end of the Claimant's notice period and "the effective date of termination" had not been altered.
27. The true position is that "effective date of termination" can be altered by agreement that it should be altered after it has been stipulated as in Palfry's case but that the "effective date of termination" is not amended merely by an arrangement that the employer shall be absolved from working during his period of notice as in Lees case which apparently was not drawn to the attention of the Employment Judge. If it had been drawn to her attention, she would have reached the decision which I have arrived at.
28. In consequence, "the effective date of termination" in this case was 1 December 2008 and so the claim was brought in time. Thus the appeal must be allowed.

Post Judgment Note

29. After I had prepared the judgment, I was shown an email from the Claimant dated 27 June 2010 to the Employment Appeal Tribunal. In the light of my decision to allow his appeal, I did not consider it necessary or appropriate to take into account the contents of his email.