Roberts v Banham Patent Locks Ltd

A retirement letter can amount to notice terminating employment on a specified date where, objectively construed, it notifies the employee of retirement on that date and provides that employment will continue only if the employee requests to work beyond it. The fact that the dismissal might be unfair does not prevent it from being a dismissal for determining the effective date of termination. Where the employee makes no request to continue and does not return to work, the notice takes effect on the stated retirement date. A claim presented more than three months after that date is out of time unless an extension of time is available.

The claimant presented an ET1 on 31 March 2011 against his former employer. At a pre-hearing review, Employment Judge Zuke held the claims out of time on three alternative bases: termination by the claimant's conduct, frustration during his remand in custody, or dismissal by retirement on his 65th birthday.

The claimant appealed. The Employment Appeal Tribunal heard the retirement issue first because, if the employer's letter of 1 October 2009 gave effective notice of retirement on 9 May 2010, that conclusion independently disposed of the appeal. The central issue was the effective date of termination.

1. Appeal dismissed. The Tribunal upheld the Employment Judge's third and independent conclusion that the claimant was dismissed by reason of retirement on 9 May 2010, his 65th birthday.

2. The letter of 1 October 2009 was objectively a letter of termination by retirement on a specified date. It was conditional only in the sense that the claimant could prevent retirement by notifying the employer that he wished to continue working beyond that date. It was not merely a request for information about his intentions.

3. On the facts found, the claimant made no request to remain in employment. He had not attended work after 8 November 2009 and did not communicate with the employer while on remand, despite its attempts to contact him. The retirement notice therefore took effect on 9 May 2010.

4. The resulting dismissal fixed the effective date of termination for limitation purposes. The ET1, presented on 31 March 2011, was out of time. There was no challenge to the Employment Judge's refusal to extend time.

5. It was unnecessary to determine whether the alternative conclusions of resignation by conduct or frustration were correct. The Tribunal nevertheless indicated, consistently with later authority, that Harrison v George Wimpey & Co Ltd should not be followed on resignation by conduct.

• Employment Appeal Tribunal: appeal dismissed; the Employment Judge's conclusion that retirement took effect on 9 May 2010 was upheld.
• Employment Tribunal (London South): at a pre-hearing review, Employment Judge Zuke held the claims time-barred on three alternative analyses.