Wedgewood v Minstergate Hull Ltd

Where employment is terminated by notice, the effective date of termination is ordinarily the date on which the notice expires under the Employment Rights Act 1996. An agreement relieving the employee from working during some or all of the notice period does not, by itself, bring that date forward where the contract remains in force and pay continues until the original expiry date.

The parties may, however, expressly agree to vary the effective date after notice has been given. The agreement must alter the termination date, rather than merely waive the employee’s obligation to work. The wording and substance of the parties’ agreement must therefore be examined.

The employee was selected for redundancy and given notice expiring on 1 December 2008. Before that date, the employer agreed that he could stop working on 26 November, subject to attending a handover meeting, while continuing to receive pay until 1 December.

The employee presented his unfair dismissal claim by email on 28 February 2009. The Employment Tribunal held that the effective date of termination was 26 November 2008 and that the claim was out of time. The employee appealed, contending that release from work did not alter the contractual termination date. The central issue was whether the arrangement advanced the effective date of termination.

Appeal allowed. The effective date of termination was 1 December 2008, so the claim was brought in time.

1. Under section 97(1)(a) of the Employment Rights Act 1996, where employment is terminated by notice, the effective date of termination is the date on which the notice expires.
2. Applying Lees v Arthur Greaves (Lees) Limited [1974] 2 All ER 393, an agreement releasing an employee from the duty to work during the balance of the notice period does not terminate the contract early. The effective date remains the original expiry date, particularly where remuneration continues until that date.
3. The effective date can be altered by agreement after notice has been stipulated. Palfrey v Transco plc [2004] IRLR 916 established that a simple variation may bring the date forward where the agreement substitutes an earlier termination date and payment is made only to that date.
4. TBA Industrial Products Limited v Morland [1982] IRLR 331 was distinguished. Its reasoning that the effective date could be changed only by withdrawal of the original notice and service of a new notice was not accepted as the governing approach.
5. The letter of 26 November referred expressly to payment up to the notice-period date of 1 December. It therefore released the employee from work but did not vary the effective date of termination.

• Employment Tribunal: Employment Judge Molyneaux held on 25 August 2009 that the effective date of termination was 26 November 2008 and rejected an application for review on 25 January 2010.
• Employment Appeal Tribunal: The appeal was allowed. The claim was held to have been presented within time.