Wang v University of Keele

For written notice of dismissal, time ordinarily runs from the start of the day after notice is given, so that the employee receives the full contractual notice period. That approach applies to notice expressed in days or months and to notice communicated by email or other modern methods.

The result may differ where the contract expressly provides when notice starts, or where the contract and notice letter, construed in their factual context, show that immediate commencement was intended. Ambiguity is construed against the employer. The effective date of termination is the date when notice expires. Under Employment Rights Act 1996, section 111(2)(a), the effective date itself is included in the three-month limitation period.

Dr Wang appealed against an Employment Tribunal decision dismissing his unfair-dismissal claim as one day out of time. The Tribunal held that notice was given and received on 3 November 2008, that employment ended on 2 February 2009, and that the claim should have been presented by 1 May 2009.

The dismissal letter, sent by email on 3 November, stated that Dr Wang was entitled to three months’ notice but did not specify when the notice period began. The central issue before the Employment Appeal Tribunal was when notice started to run and, consequently, when the effective date of termination and statutory limitation period expired.

1. Appeal allowed. The Employment Tribunal’s decision was reversed and it was substituted that the claim had been submitted in time and that the Tribunal had jurisdiction to hear it.
2. Under section 97(1)(a) of the Employment Rights Act 1996, the effective date of termination in a dismissal by notice is the date on which the notice expires. The employer’s assertion that Dr Wang would be paid only until 2 February 2009 did not create a separate effective date. It merely raised the question when the three-month notice period began. A contractual period of three months could not be unilaterally shortened by one day without the employee’s assent.
3. The reasoning in West v Kneels [1987] ICR 146 applies to written notice as well as oral notice, including notice communicated electronically. The law disregards fractions of a day. Unless the contract provides otherwise, notice given during a day begins on the following day, ensuring the employee receives the stipulated period.
4. Immediate commencement may be established by an express contractual term or by construing the contract and notice letter, viewed in their factual matrix, as having that effect. Where the wording is ambiguous, it is construed against the employer, consistently with Chapman v Letheby & Christopher Ltd [1981] IRLR 440.
5. The corresponding-date rule is a method of calculating calendar months. Section 111(2)(a) provides for three months beginning with the effective date of termination, so that date is included in the period. Notice began on 4 November 2008, expired on 3 February 2009, and the limitation period ended on 2 May 2009. The claim presented on that date was therefore in time.

• Employment Appeal Tribunal: Appeal allowed. The Employment Tribunal’s finding that the claim was out of time was reversed, and a finding that the claim was in time was substituted.
• Employment Tribunal: The unfair-dismissal claim was dismissed as presented one day out of time. The Tribunal’s judgment was dated 5 October 2009 and sent to the parties on 19 October 2009.