Heaven v Whitbread Group Plc

The effective date of termination is a statutory construct. It depends on what passed between the parties, rather than on the date they seek to agree or assert. A conditional or equivocal resignation does not terminate the employment contract. Termination occurs when the employee gives a clear and unequivocal resignation. The effective date cannot then be backdated by the employee or by agreement.

The Employment Tribunal, sitting alone, dismissed the unfair dismissal claim for want of jurisdiction. The issue was whether the claim had been presented within three months of the effective date of termination under sections 111 and 97 of the Employment Rights Act 1996.

The employee had sent a conditional resignation letter, seeking assurances about payment and a reference. The employer stated that it could not action a conditional resignation and asked him to clarify whether he was resigning. The employee subsequently emailed a clear resignation, while asserting that it was effective from the date of the earlier letter. The central issue was whether termination occurred on the date of the conditional letter or the later unequivocal email.

1. The appeal was allowed. The Employment Tribunal had jurisdiction to hear the unfair dismissal claim because it was presented in time.
2. The effective date of termination under section 97 of the Employment Rights Act 1996 is a statutory construct. It is determined by what occurred between the parties, not by their wishes or by an agreement as to the date.
3. A contract of employment cannot be terminated by an equivocal or conditional resignation. There is a fundamental distinction between resigning and negotiating the terms on which resignation will occur.
4. The conditional resignation letter did not terminate the contract. The later email provided the necessary clarity and constituted the resignation. The effective date was therefore the date on which that email was sent.
5. The employee could not retrospectively make the resignation effective from the earlier date by asserting that it was so effective. The reasoning in Fitzgerald v University of Kent at Canterbury [2004] EWCA Civ 143 applied.

• Employment Tribunal: On 17 February 2009, Employment Judge Fletcher dismissed the claim for lack of jurisdiction.
• Employment Appeal Tribunal: The appeal was allowed. The Tribunal held that the claim was in time and that there was jurisdiction to hear it.