Willets v The Jennifer Trust For Spinal Muscular Atrophy

Where an employee resigns on notice, the effective date of termination is ordinarily the date on which the notice expires. During the notice period, the parties may agree to extend or shorten that date, but they cannot agree retrospectively to alter an effective date that has already arisen. An employee’s notice cannot be unilaterally withdrawn, although the parties may agree to a replacement notice or variation. Where a limitation issue turns on a claimant’s mistaken belief about the termination date, the tribunal must consider whether that belief was reasonable when deciding whether it was reasonably practicable to present the claim in time.

The claimant resigned from employment and initially indicated that she would leave on 30 July 2010. On 9 July she confirmed that her contractual notice ran until 6 August. The respondent confirmed that leaving date, paid her through 6 August and issued a P45 recording it, although the respondent later maintained that the date resulted from an error.

The Employment Tribunal found that the effective date of termination was 27 July and held that the constructive unfair dismissal complaint presented on 2 November 2010 was out of time. It also found that presentation within time had been reasonably practicable. The appeal concerned the correct effective date and, alternatively, whether the claimant’s mistaken belief about that date was reasonable.

1. Appeal allowed. The unfair dismissal claim was declared not time-barred. The outstanding strike-out application under ET rule 18(7)(b) was remitted to the Employment Tribunal.
2. Section 97(1)(a) of the Employment Rights Act 1996 provides that, where a contract is terminated by notice given by either party, the effective date of termination is the date on which the notice expires. The claimant’s letter of 28 June was a resignation on notice and did not require acceptance.
3. Notice given by an employee cannot be unilaterally withdrawn. During its operational period, however, the parties may agree to extend it or shorten it. They cannot agree retrospectively to alter an effective date that has already arisen. Those principles were drawn from Harris and Russell Ltd v Slingsby [1973] ICR 454, Mowlem Northern Ltd v Watson [1990] ICR 751, Palfrey v Transco [2004] IRLR 916 and Fitzgerald v University of Kent at Canterbury [2004] IRLR 300.
4. On the evidence, the original notice was varied by agreement during the notice period so that termination occurred on 6 August. Alternatively, adopting the majority approach in TBA Industrial Products Ltd v Morland [1982] IRLR 331, the claimant withdrew the original notice and gave a new notice on 9 July, with the respondent’s consent.
5. Alternatively, even if the effective date were 27 July, the tribunal had failed to ask whether the claimant’s mistaken belief that she had replaced her original resignation was itself reasonable. That was the inquiry identified in Walls Meat Co. Ltd v Khan [1979] ICR 52 and discussed in Defer-Wyatt v Brenig Williams EAT/0270/03/DA. The claimant reasonably relied on the respondent’s confirmation of 6 August and therefore showed that presentation within time had not been reasonably practicable.

• Employment Tribunal: At a preliminary hearing, the tribunal held that the effective date of termination was 27 July 2010, that the claim lodged on 2 November 2010 was out of time, and that it had been reasonably practicable to present it within time.
• Employment Appeal Tribunal: Allowed the appeal, declared that the claim was not time-barred, and remitted the respondent’s outstanding strike-out application to the Employment Tribunal.