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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Willets v The Jennifer Trust For Spinal Muscular Atrophy (Jurisdictional Points : Claim in time and effective date of termination) [2011] UKEAT 0282_11_2809 (28 September 2011) URL: http://www.bailii.org/uk/cases/UKEAT/2011/0282_11_2809.html Cite as: [2011] UKEAT 0282_11_2809, [2011] UKEAT 282_11_2809 |
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EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
Before
HIS HONOUR JUDGE PETER CLARK
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
The facts
“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.”
“[...] 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.”
“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.”
“8.4 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).
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