Effectively terminated

Wedgewood v Minstergate Hull Ltd

The law says that claimants must lodge their unfair dismissal complaint within three months less one day of the effective date of termination (EDT). In Wedgewood v Minstergate Hull Ltd, the Employment Appeal Tribunal (EAT) said that, if the employee is paid up until the end of the notice period, the EDT does not change because of an arrangement between the parties absolving the employee of the need to actually be at work during their notice period.

Basic facts

After several consultation meetings, Mr Wedgewood agreed with his employer that he would be dismissed by reason of redundancy on 1 December 2008. This was confirmed by letter on 4 November.

However, he then asked if he could leave on 26 November instead and it was agreed that he need not come to work after that date, but that he would be paid up to the end of his notice period which was 1 December.

This was confirmed by letter which he countersigned. He attended a handover meeting on 28 November but was otherwise not required to be at work from then on.

Mr Wedgewood then lodged an unfair dismissal claim on 28 February 2009 which was within the required three month period, but only if his effective date of termination was 1 December 2008. The company claimed the EDT was either the 26 or 28 November.

Relevant law

Section 97 of the Employment Rights Act 1996 (ERA) states that the “effective date of termination” if the contract is terminated by notice “means the date on which the notice expires.”

Tribunal decision

The employment judge decided that, in line with the 2004 decision in Palfrey v Transco plc, the company’s second letter confirming that Mr Wedgewood would finish on 26 November 2008 amounted to a withdrawal of the original notice date of 1 December.

That meant Mr Wedgewood should have submitted his tribunal claim by 25 February 2009. As he had not done so, the tribunal said it could not hear his claim.

EAT decision

However, the EAT disagreed. It said that although the company released Mr Wedgewood from his obligation to attend work, the letter of 26 November made clear that he would be paid up to and including his notice date of 1 December. So, unlike Palfry, Mr Wedgewood’s date of termination had not changed and his claim was not, therefore out of time.

The EAT said that although Mr Wedgewood and his former employer could have agreed to vary the EDT, they had not done so. Applying the case of Lees v Greaves (which had not been brought to the attention of the employment judge), the EAT said that it made clear that, where the employee is paid up until the end of the notice period an EDT could not be varied by an arrangement absolving the employee of the need to work during their notice period.