Appeal No. UKEAT/0282/11/SM
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
On 28
September 2011
Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE)
DR
L WILLETTS APPELLANT
THE
JENNIFER TRUST FOR SPINAL MUSCULAR ATROPHY RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
JURISDICTIONAL POINTS
Claim in time and effective date of termination
Extension of time: reasonably practicable
Resignation notice by Claimant. Whether termination date
extended by agreement. What was the EDT? If outside the three-month limit,
was it not reasonably practicable to lodge the claim in time? Appeal allowed
on both questions. Claim not time-barred.
HIS HONOUR JUDGE PETER CLARK
Introduction
1.
The parties in this matter in the Birmingham Employment Tribunal are Dr
Willetts, Claimant, and the Jennifer Trust for Spinal Muscular Atrophy,
Respondent.
2.
The principal question raised in this appeal, brought by the Claimant
against the Judgment with Reasons of Employment Judge Wynn-Evans, following a
PHR held on 25 February 2011, is what, as a matter of law, was the
effective date of termination (EDT) of the Claimant’s contract of employment
with the Respondent?
3.
If it was, as the Employment Judge found in his Judgment promulgated on
17 May, 27 July 2010, then her complaint of constructive unfair
dismissal contained in a form ET1 lodged on 2 November 2010 fell outside
the primary three-month limitation period. The Employment Judge also held that
the Claimant had not shown that it was not reasonably practicable for her to
present her claim within time. Both findings are challenged on appeal. If the
EDT was 6 August 2010, as the Claimant contends, then the claim was
lodged in time.
The facts
4.
At the PHR the Employment Judge heard oral evidence only from the
Claimant. The Respondent called no live witnesses. He also had before him a
bundle of documentary evidence. The relevant facts are these.
5.
The Claimant commenced work as Director of Support Services with the
Respondent charity on 18 August 2008. By letter dated
28 June 2010 she tendered her resignation to Heather Brown of the
Respondent. She claimed that her position at the Respondent was untenable for
a number of reasons; circumstances which she believed could be interpreted as a
constructive dismissal situation, although she indicated in that letter that
she had no intention of taking that course of action. She stated that she was
contractually obliged to give four weeks notice but indicated an intention to
leave on 30 July. In fact the contractual notice period was, apparently,
one month. She was asked to reconsider her position with a time limit of
9 July. On that date she wrote a further letter to Ms Brown confirming
her intention to resign. She added:
“I am contractually obliged to give 4 weeks notice from today, [9 July]
which means that my last day in employment will be Friday August 6th 2010.”
6.
On 13 July she lodged a grievance against Heather Brown. She was
asked not to attend the office and did not do so. She was effectively on
garden leave subject to any work she did for the Respondent at home or
elsewhere. On 21 July the finance manager, Sue Taylor, emailed the
Claimant saying:
“[...] I confirm that your leaving date is Friday 6th August.
Your July pay will be as normal. What you are owed in respect
of holiday pay and Toil [time off in lieu] will be paid on the usual pay day at
the end of August with your pay up to and including 6th August. This is
the usual process for anyone leaving part way through a month.”
7.
Heather Brown responded to the Claimant’s grievance in a document dated
27 July 2010. On page 18, at paragraph 5, she said this:
“Liz (Claimant) did not withdraw her first letter of resignation,
when she confirmed that she had decided to resign on 7th July her
termination would have still stood at the 31st July. Having received her 2nd
letter of resignation when it was decided that Jennifer Trust would exercise
its rights under paragraph 12.6 of Liz’s contract of employment for her not to
work her notice. I extended her Leaving date to the 6th August 2010.
This was a simple typolitical [sic] error on my part. When brought to our
notice by Liz this has been corrected for pay purposes. As Liz is still in the
employment of the Jennifer Trust up to the 6th August. We have been able
to correct this typolitical error before her leaving date.”
8.
As the finance manager had indicated in her email of 21 July, after
the Claimant received her pay for July she was paid for the period
1-6 August as appears on her 31 August pay statement. Her form P45
dated 20 August gives her leaving date as 6 August 2010. At
paragraph 8.4 of his Reasons, the Employment Judge said this:
“8.4 The fact that the respondent paid the claimant until
6 August 2010 and issued a P45 reflecting that as the termination
date, being the date which she identified as her termination date in her second
resignation letter and which indeed the respondent’s Finance Manager recorded
in an e mail and in the claimant's P45, is undisputed as a matter of fact. I
accept that this was a genuine error on the part of the respondent, especially
in the context of what (as is common ground) is a small charitable organisation
with minimal administrative support and professional advice.”
9.
I enquired of the parties during the hearing what evidence supported the
finding that this, presumably the date 6 August, was a genuine error on
the part of the Respondent. No oral evidence to that effect was led on behalf
of the Respondent. It was, Mr Mitchell tells me, put by him to the Claimant in
cross-examination but he cannot recall her reply. Miss Mallick tells me that
the Claimant rejected that suggestion. The only error raised in the
documentary evidence appears in the passage from Ms Brown’s response to the
Claimant’s grievance, set out above. However, it is common ground that the typographical
error referred to by Ms Brown was a reference by her to a leaving date of
4 August in an earlier letter to the Claimant. Thus there was no evidence
to support a finding that the 6 August date represented an error on the
Respondent’s part.
Analysis
10.
Section 97(1)(a) of the Employment Rights Act 1996
(ERA) provides:
“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.”
I agree with the Respondent that the Claimant’s letter of
28 June was a letter of resignation on notice. It did not require
acceptance by the Respondent. I prefer the view that that notice expired, as
the Claimant said, on 30 July. Strictly the notice period under the
contract was one month, hence the date contended for by the Respondent of
27 July and accepted by the Employment Judge. However as a matter of law,
notice once given by an employee cannot be unilaterally withdrawn (see Harris and Russell Ltd v Slingsby
[1973] ICR 454) but it can, during the operational period of that notice be
extended (see Mowlem Northern Ltd v Watson
[1990] ICR 751) or shortened (see Palfrey v Transco
[2004] IRLR 916) by agreement between the parties. What the parties cannot
agree is a retrospective EDT (see Fitzgerald v University of Kent at Canterbury [2004] IRLR 300).
11.
On the facts in the present case, it not being suggested here or below
that the contract was terminated not by the Claimant, but by the Respondent
under section 95(1)(a) ERA on 13 July with pay in lieu of notice, it is
plain to me that the original notice given by the Claimant on 28 June was
varied by agreement between the parties during the currency of the notice
period, whereby the date of termination was extended to 6 August.
Alternatively, and in deference to the views expressed by the majority of the
Court of Appeal in TBA Industrial Products Ltd v Morland
[1982] IRLR 331, the true analysis is that the Claimant withdrew her original
notice of 28 June and gave a new notice on 9 July, giving a
termination date of 6 August, with the consent of the Respondent. All the
evidence points in one direction.
12.
In these circumstances I hold that the Employment Judge was wrong to
find that the EDT was 27 July on a correct legal analysis of the facts,
and I would allow the appeal on this basis. Further, even if the EDT was
27 July, as the Employment Judge held, it is clear from paragraphs 10 and
11 of his Reasons that, having found (see paragraph 7) that the Claimant held a
genuine but mistaken belief that she had retracted her original resignation,
and substituted a second resignation by her letter of 9 July, he then
failed to ask himself the question raised by Brandon LJ in Walls Meat Co. Ltd v Khan
[1979] ICR 52, 60F-61A, discussed at paragraphs 15-16 of my Judgment in Defer-Wyatt v Brenig Williams
(EAT/0270/03/DA 24 July 2003, unreported). Was that mistaken belief
itself reasonable?
13.
Unlike the Claimant in Northamptonshire County Council v Entwhistle [2010] IRLR 740, this Claimant did
not rely on wrong advice from her own adviser. She took the Respondent at
their word and worked to the 6 August date to lodge her ET1 within the
three-month time limit. In these circumstances I would hold in the
alternative, contrary to the finding of the Employment Judge, that she had
shown that it was not reasonably practicable to present her complaint within
time if the EDT was 27 July.
Disposal
14.
It follows that the appeal is allowed. I declare that the unfair
dismissal claim is not time‑barred. Mr Mitchell tells me that there
remains, as a preliminary issue, the Respondent’s application for a strike‑out
order under ET rule 18(7)(b). That issue was not determined by the Employment
Judge at the first PHR and must return now to the ET for determination.
