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First published in CSR Law Report on 9 May 2012
When an employee resigned without notice, the effective date of termination was the date that the resignation letter was opened at the employer's offices.
Ms Horwood (H) wrote to her employer, resigning with immediate effect and confirming that she intended to submit a constructive unfair dismissal claim. She sent the letter by special delivery to the Chief Executive and two other employees. Her letter was opened at the employer's office by administrative staff the next day and was date stamped 29 January 2010. On 2 February 2010, the employer wrote to H, accepting her resignation, which it said would commence from 2 February 2010. H was paid up to and including this date and received her pension from 3 February 2010.
H sent a claim form dated 28 April 2010 to the employment tribunal which arrived on 29 April 2010. The employer alleged that the claim was out of time as it had not been brought within three months of the effective date of termination (EDT), as required under the Employment Rights Act 1996. The employment judge agreed. The EDT was 29 January 2010. The last date upon which the tribunal should have received H's claim was 28 April 2010 so her claim was out of time.
The EAT dismissed H's appeal. The EDT was 29 January 2010. When an employer summarily dismisses an employee, the employee needs to know that they have been dismissed before they can be expected to take action, as the purpose of the legislation is to protect employees' rights. However, these concerns do not arise when an employee decides to leave. In these circumstances, the EDT is the date on which that information is communicated effectively to the employer.
H's letter of resignation, with immediate effect, was unequivocal in its terms. Once it was received at the office, and opened and date-stamped by the administrative staff, H's communication of her resignation was effective. This was so even though the letter may not have been read by any of its intended recipients on 29 January 2010. The EDT could not be altered by the employer informing H that her resignation would commence from a later date or by the fact that H received salary until 2 February 2010 and pension from 3 February 2010. The EAT also confirmed that the EDT had not been subsequently varied. It was fixed and could not retrospectively be altered. It had also been reasonably practicable for H to issue her claim in time. The problem had arisen due to a misunderstanding between H and her legal adviser.
If an employer therefore summarily dismisses an employee by letter, the EDT is the date on which the employee reads the letter or has a reasonable opportunity of discovering the contents. However, where an employee resigns by letter with immediate effect, the EDT is the date on which the resignation is communicated to the employer (in this case, when the letter was received and opened at the employer's office).
Horwood v Lincolnshire County Council UKEAT/0462/11
Louise Fernandes-Owen, Senior Associate (PSL), in our Employment and Pensions Group at Field Fisher Waterhouse LLP