In cases of unfair dismissal, claimants have to lodge their tribunal claim within three months (less one day) of the effective date of termination of their contract.
As the claimant in the case of Palfrey v Transco (2004, IRLR 916) found out, that means that the first thing you have to do is identify the effective date of termination.
What were the basic facts?
Mr Palfrey was made redundant by Transco, and was told in a letter dated 24 February 2003 that his notice period would start on 25 February. As he was entitled to 12 weeks' contractual notice, his last day at work was 19 May.
However, the letter also said that he could be paid in lieu of notice, if that was more suitable for him. Mr Palfrey agreed and his employer confirmed in a further letter dated 17 March that his last day of work would therefore be 31 March.
Mr Palfrey then made a claim of unfair dismissal more than three months after 31 March, but less than three months from19 May.
The question for the tribunal was whether Mr Palfry's effective date of termination was the one set out in Transco's original letter (19 May) or its subsequent letter (31 March). It looked at the majority decision of the Court of Appeal in TBA Industrial Products Ltd v Morland (1982, IRLR 331), which said that if employers want to alter the effective date of termination, they should serve a new notice which was 'causative of the termination' and which complied with the date suggested by the employee.
The tribunal said that although the relevant statute (section 97(1)(a) of the Employment Rights Act) makes no mention of causation, it was bound by the precedent established by the Court of Appeal.
It concluded that the notice given by Transco on 17 March resulted in (or 'caused') Mr Palfry's employment to come to an end. His contract therefore finished on 31 March and his claim was out of time.
What did the EAT decide?
The employment appeal tribunal (EAT) agreed. It said first of all that employers and employees often want to vary an initial notice of termination - this was by no means an unusual situation.
It made sense, therefore, for the parties to be able to engage in discussion and vary the notice. Otherwise, if the termination of employment itself was deemed to have resulted from an agreement between the parties, the employee could not make a claim for unfair dismissal, since there would have been no dismissal.
To avoid the assumption that an original notice could not be varied, the Court of Appeal had decided in TBA that it had to be positively withdrawn. The EAT said that although Transco had not withdrawn their original notice and then served a new one, its letter of 17 March had effectively provided 'fresh notice.'
In any event, the EAT said that the decision of the Court of Appeal in TBA should not be followed because it had not taken account of a number of other important decisions.
The EAT concluded therefore that when there is an agreed variation of the notice of dismissal, the notice expires on the new date, as does the contract of employment. (The same would seem to apply to an agreed variation of a notice of resignation.) This means that the tribunal time limit starts to run from the date on which the revised notice expires.