Little v Richmond Pharmacology Ltd

The effective date of termination is a statutory construct. It is determined by what happened between the parties under the statutory provisions, rather than by a later contractual arrangement or the parties’ description of events. An unequivocal written resignation with immediate effect takes effect when given, subject only to the limited circumstances in which the words did not reflect the sender’s true intention. A subsequent invitation to discuss matters, or an opportunity to reconsider, does not revive the employment relationship where the resignation is reaffirmed.

For the escape clause in the Employment Rights Act 1996, the claimant must show that it was not reasonably practicable to present the complaint in time. Reliance on advisers, personal difficulties and an erroneous understanding of the deadline did not satisfy that test on the facts.

The claimant appealed against an Employment Judge’s decision at a pre-hearing review that her unfair dismissal complaint was out of time. She had resigned with immediate effect on 19 July 2010, later attended a meeting with the employer, and reaffirmed her resignation. Correspondence from a claims management organisation and the employer referred to later dates, including 31 July and 1 August. The claimant presented her claim on 28 October 2010.

The Employment Judge held that the effective date of termination was 19 July and that it had been reasonably practicable to present the claim within three months. The central issues before the Employment Appeal Tribunal were the correct effective date of termination and whether the statutory extension for cases where timely presentation was not reasonably practicable applied.

1. Appeal dismissed. The effective date of termination for the unfair dismissal complaint was 19 July 2010.
2. The claimant’s written resignation stated that it was with immediate effect. It was expressed in measured terms after a substantial period for reflection and was later reaffirmed. The limited circumstances sometimes described as a cooling-off or special-circumstances exception did not apply.
3. The employer’s invitation to a meeting did not waive or suspend the resignation. Nor did the parties’ subsequent correspondence, the P45, payments, or concessions establish a mutual agreement to substitute 31 July or 1 August as the statutory date.
4. The effective date of termination is a statutory construct under sections 95 and 97 of the Employment Rights Act 1996. It cannot be changed for limitation purposes by treating the contractual relationship as continuing or by adopting a date agreed for other purposes. The issue had to be determined as a jurisdictional matter before the substantive allegations were resolved.
5. The Employment Judge had permissibly concluded that it was reasonably practicable for the claimant to present her complaint by 18 October 2010. Whether Tribunal Action was a skilled adviser did not alter the result. If it was an adviser on whom the claimant relied, its mistake was attributable to her; if it was not, the claimant retained responsibility for presenting the claim. Her personal circumstances and mistaken belief that the deadline ran from a later date did not make timely presentation impracticable.
6. The sex discrimination claim was unaffected because the Employment Judge’s separate decision to extend time under that statutory regime was not challenged. The judgment was directed to be sent to the Claims Management Regulator.

• Employment Appeal Tribunal: dismissed the appeal against the Employment Judge’s decision that the unfair dismissal complaint was out of time. The sex discrimination claim proceeded.
• Employment Tribunal: Employment Judge Cheetham, sitting at a pre-hearing review on 25 January 2011, with Reasons sent on 18 March 2011, held that the effective date of termination was 19 July 2010 and that the unfair dismissal claim was out of time.