Vasella Ltd & Anor v Eyre (Jurisdictional Points : Claim in time and effective date of termination)

For a constructive dismissal, the effective date of termination under Employment Rights Act 1996 is a statutory and objective question. It must be decided practically and by reference to what the parties said and did.

An employee should not be fixed with a date earlier than that on which they could reasonably expect the employer to learn of the resignation, or earlier than the clear and unambiguous date stated for it to take effect. Physical delivery of a resignation letter does not necessarily make termination immediate. Where the letter expressly resigns with immediate effect on the following day, and the employee reasonably expects no earlier communication to the employer, that following day is the effective date.

The Claimant, an hotel operations manager, delivered a sealed resignation letter to the hotel on Sunday 21 November 2010. The letter was dated the following day and stated that she resigned with immediate effect. She also sent its text by email that evening to an employee who ordinarily worked Monday to Friday.

The employer accepted the resignation on 22 November and stated that the Claimant’s final employment date was that day. The Claimant presented her unfair dismissal claim on 21 February 2011. Its timeliness depended on whether the effective date of termination was 21 or 22 November.

The Employment Tribunal held that termination took effect on 22 November. The Respondents appealed on the time-bar issue.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the effective date of termination was Monday 22 November 2010. The unfair dismissal claim was therefore presented in time.

2. Under section 97(1)(b) of the Employment Rights Act 1996, the effective date of termination is a statutory construct. It is determined objectively, in a practical and commonsense way, from what occurred between the parties. It is not fixed by an agreement purporting to alter what actually happened.

3. The statutory purpose of protecting employees’ rights applies when identifying the date of termination in a constructive dismissal case. It would be unfair to start time running before the employee could reasonably expect the employer to know of the resignation, or before the clearly stated date on which the employee said the resignation would take effect.

4. The delivered letter did not communicate a resignation taking effect on 21 November. It clearly communicated resignation on 22 November. The Claimant also had no reason to expect that the letter or Sunday email would be read and acted upon before that date. The employer’s letter accepting resignation on 22 November was consistent with that objective conclusion.

5. The Tribunal did not need to decide the cross-appeal based on personal bar. The point had not been argued below and there were no findings that the Claimant had relied on the employer’s representation when presenting her claim.

• Employment Appeal Tribunal: dismissed the Respondents’ appeal and upheld the Employment Tribunal’s conclusion that the effective date of termination was 22 November 2010.
• Employment Tribunal, Glasgow: following a pre-hearing review, held that it had jurisdiction to determine the unfair dismissal complaint because it was not time barred.