Effective date of dismissal where employee resigns without notice

Effective date of dismissal where employee resigns without notice

Published:

Author: Kevin McCavish

The Employment Appeal Tribunal (EAT) has given useful guidance on the effective date of termination for an employee who resigns without notice

Background

It can be very important to know what an employee's "effective date of termination" (EDT) is in order to determine what their statutory rights may be. For example, whether an employee has the necessary length of service before they are dismissed will generally determine whether or not they can bring a claim of unfair dismissal and it is necessary to know the correct EDT in order to ascertain this.

The Employment Rights Act 1996 provides that an employee's EDT is:

  • the date on which their notice expires, where notice is given; or
  • where the contract is terminated without notice of the date on which termination takes effect.

Facts

The claimant resigned by letter "with immediate effect" and claimed constructive dismissal. Her resignation letter was sent by special delivery to her employer's Chief Executive and copied to the Practice Manager and another Director on 28 January. The letter arrived the next day and was opened by administrative staff and date stamped 29 January. On 1 February the Practice Manager saw the letter and arranged for confirmation to be sent to the claimant. This letter stated,

"Your resignation will commence from the date of this letter, 2 February."

The claimant's claim was dated 28 April and arrived at the tribunal the next day. The employer argued that the claim was out of time because the EDT was 29 January - the date that the resignation letter was opened by administrative staff and therefore the latest day that an unfair dismissal claim could be submitted was 28 April.

The tribunal agreed and the claim was struck out at a Pre-Hearing Review. The claimant appealed arguing that even if her original EDT was 29 January this had subsequently been varied to the 2 February by the employer.

EAT decision

The EAT dismissed the appeal and agreed with the tribunal: it was sufficient that the letter had been opened and date stamped by administrative staff on the 29 January for this to be the date on which the resignation was communicated to the employer. The employer's subsequent letter had not varied that EDT.

The EAT confirmed that an EDT could not be altered by the parties retrospectively. There was a difference between cases where an earlier termination date was agreed during the notice period and cases like this one where effective communication of the decision to resign immediately fixed the EDT and this could not subsequently be varied. Since the claimant's contract had ended on 29 January it was not open to the employer to change the termination date of a contract which had ceased.

Comment

When an employee resigns their EDT will be the date on which the resignation is communicated to the employer and this case confirms that it is not open to the parties to agree an EDT after that event.

It is also worth noting that there is no need for the letter to actually be read by the individual to whom it is addressed. As long as someone at the employer's organisation has seen the letter, the communication is effective. In this case the administrative staff were not even Council employees but employees of the company contracted to provide business and administration services to it. The EAT was satisfied that they were acting as agents of the employer and, as such, were authorised to open and date-stamp all letters arriving for the attention of the Council's employees.

Case: Horwood v Lincolnshire County Council UKEAT/0462/11