Heaven v Whitbread Group plc
Section 111 of the Employment Rights Act states that claims of unfair dismissal have to be brought in a tribunal within three months of the effective date of termination. In Heaven v Whitbread Group plc, the Employment Appeal Tribunal (EAT) said that the effective date is a statutory construct which depends on what actually happened between the two sides and not what they decide has happened.
Basic facts
Following a meeting on 28 August 2009, Mr Heaven wrote a letter the following day to his employer headed “conditional resignation letter”. In it, he stated that he would hand in his notice if he got an assurance he would receive a month’s salary in lieu of notice and a “glowing reference”.
Mr Heaven then received a reply from his employer dated 31 August stating that he could expect a month’s notice, but that the company was totally confused about whether he had resigned or not and that it could not action “a conditional resignation”.
Mr Heaven e-mailed back on 3 September confirming that his resignation was effective from 29 August. Mr Heaven subsequently made a claim of unfair dismissal, giving the effective date of termination as 29 September.
Tribunal decision
The tribunal decided that Mr Heaven’s effective date of termination was 29 August. This was simply because, following the e-mail of 3 September, Mr Heaven had made clear that he wanted his resignation to be effective from 29 August.
As that meant the effective date of termination was outside the three-month time limit for lodging a claim, the tribunal did not have jurisdiction to hear his claim for unfair dismissal.
EAT decision
The EAT, however, disagreed. It stated that the effective date of termination is a “statutory construct” and therefore “depends on what has happened between the parties and not on what they may agree to treat as having happened.”
The tribunal decision was fatally flawed as it had not taken into account the decision of the Court of Appeal in Fitzgerald v University of Kent at Canterbury, which made clear that a contract of employment cannot be brought to an end by an equivocal and conditional letter.
The EAT said therefore that claimants have to “either resign or you negotiate the terms on which you will resign, but there is a fundamental distinction between those two propositions, and so the letter of conditional resignation did not bring the contract to an end. What brought the contract to an end was the Claimant’s email, saying that he intended to resign and did resign. That email did not take place until 3 September 2009. He provided clarity. What Mr Heaven was unable to do was to backdate it by his assertion, “I confirm my resignation is effective from 29 August 2009”.
Accordingly the effective date of termination was 3 September and Mr Heaven’s application had been lodged within the time limit and his substantive claim for unfair dismissal could be heard.