It can be critically important in employment law to know when a person’s employment came to an end. This is mainly because there are strictly applied time limits for bringing certain claims in employment tribunals based on the date on which employment was terminated. For example, an unfair dismissal claim must normally be presented to an Employment Tribunal before the end of the period of three months beginning with the “effective date of termination”. The power of employment tribunals to extend the time limit is extremely limited, meaning that it can be very difficult to persuade them to do so.
For this reason, and for other reasons such as calculating the length of “continuous employment” required for accruing employment certain rights, it can be very important to be clear about how to ascertain the “effective date of termination”.
An EAT case in April 2011 has helped clarify this point. For many years it has been established law that where an employee is dismissed by word of mouth notice is deemed to start from the beginning of the day after it was given. This is because the law takes no account of fractions of a day so the day on which notice is given does not count. However, it has not been certain that the same rule applies where the dismissal notice was in writing, not least because written notices often specify the date on which the notice period starts and/or ends.
In the case in question, an employment tribunal had refused to hear an employee’s unfair dismissal claim because, according to the tribunal, the claim had been lodged one day out of time. The claim had been lodged on 2 May 2009. The employer pointed out that the emailed dismissal letter giving the employee three months’ notice of dismissal had been received by the employee on 3 November 2008. According to the employer this meant the effective date of termination was 2 February 2009 and the last day for filing an unfair dismissal complaint was therefore 1 May 2009. As the claim had been filed on 2 May it was out of time. The employment tribunal accepted this argument, refused to allow an extension of time and dismissed the claim.
The employee appealed to the EAT. He won.
In a fully reasoned decision the EAT made it clear that, unless there is some agreement or stipulation to the contrary, the same rule about when notice starts to run applies to written notices of dismissal as to verbal notices. So in both cases the default position is that notice starts to run at the beginning of the day after it is given. Therefore in this case the notice period ran from 4 November 2008, not 3 November, so the effective date of termination was 3 February 2009, not 2 February. The last day for filing an unfair dismissal claim was therefore 2 May 2009, meaning that the employee had filed his claim in time after all.
For practical purposes, a lesson to be learned from this case (Wang v University of Keele) is that it will generally be prudent for an employer to stipulate the intended date of termination in any dismissal letter. That will generally avoid any uncertainty. The other, more general lesson, for both employers and employees is to be fully aware of the great importance of the statutory time limits and the fact that they are generally very strictly applied by employment tribunals.