Horwood v Lincolnshire County Council

An employee who resigns with immediate effect fixes the effective date of termination when the resignation is effectively communicated to the employer. For a large organisation, communication occurs when the resignation is received and opened by staff acting for it. It need not be read by the intended manager.

The effective date of termination is a statutory construct. An employer cannot later alter it unilaterally for payroll or administrative purposes, and the parties cannot retrospectively rewrite it after an immediately effective resignation. A mistaken assumption by an employee and legal adviser about the date does not establish that timely presentation of an unfair-dismissal claim was not reasonably practicable.

The claimant resigned with immediate effect by letters delivered to the respondent council on 29 January 2010. Administrative staff opened and date-stamped the letters that day. On 2 February, without discussion with the claimant, a manager stated for payroll purposes that the resignation would commence on that date. The claimant received salary through 2 February and presented an ET1 on 29 April 2010.

At a pre-hearing review, the Leicester Employment Tribunal held that claims for constructive unfair dismissal and unlawful deductions from wages were out of time. It found that the effective date of termination was 29 January and that an extension was not justified. It later refused a review. The claimant appealed both decisions, principally disputing the effective date of termination and reasonable practicability.

1. Appeals dismissed. The Employment Judge correctly held that the effective date of termination was 29 January 2010. Under section 97(1)(b) of the Employment Rights Act 1996, the effective date for employment terminated without notice is the date on which termination takes effect. The expression is a statutory construct, not a contractual date.

2. The claimant's unequivocal immediate resignation was effectively communicated when it was received, opened and date-stamped at the respondent's offices. It was unnecessary to prove that an intended recipient had personally read it. The administrative staff who opened the letters acted as the respondent's agents. The reasoning in George and Potter applied, and gave the necessary certainty to both parties.

3. The manager's later letter could not set a new effective date. The contract had already ended. Payments of salary until 2 February and pension arrangements from 3 February did not alter that result. A clear agreement during a notice period may in suitable circumstances alter a prospective termination date, but there was no express agreement here and no basis for unilateral variation, acceptance by silence, or retrospective alteration after an immediate resignation.

4. The ET1 was one day late. The claimant and her adviser had initially understood the relevant date but later proceeded under an erroneous assumption. There was no impediment to presentation by the final day, including by electronic transmission. The high threshold in section 111(2)(b) of the Employment Rights Act 1996 was therefore not met.

5. The payments after 29 January were ex gratia and could not sustain a continuing contractual wages relationship. The unlawful-deductions claim could not survive. The Employment Judge was also entitled to refuse a review.

• Employment Appeal Tribunal: dismissed the claimant's appeals from the jurisdictional decision and refusal of review.
• Leicester Employment Tribunal: at a pre-hearing review, held the constructive unfair dismissal and unlawful-deductions claims out of time and without jurisdiction; it subsequently refused a review.