Labour & European Law Review Weekly Issue 223 23 June 2011
The Employment Rights Act (ERA)1996 states that an employee has to submit their unfair dismissal claim to a tribunal within three months from the effective date of termination. The Employment Appeal Tribunal (EAT) said in Wang v University of Keele that, unless a contract has an express term to the contrary, contractual notice (whether oral or written), runs from the day after it is received.
On 3 November 2008, Mr Wang received an e-mail with a letter attached to it from the director of the Research Institute where he was employed. The letter said that, as his performance in four key areas was not up to scratch, he was being dismissed from his post with three months’ notice, and that he would be paid until 2 February 2009.
Mr Wang opened and read the letter sometime during the afternoon or evening of 3 November. A few days later he received the hard copy.
He made a claim for unfair dismissal on 2 May 2009, but the university argued that, as his employment had ended on 2 February, the last day for lodging a claim was 1 May and he was therefore out of time.
Section 97 of the ERA states that the effective date of termination is the date on which the notice expires.
Section 111(2)(a) states that a Tribunal cannot consider a complaint unless it has been presented “before the end of the period of three months beginning with the effective date of termination”.
Case law states that notice starts running from when it is received, not from when it is given.
The Tribunal agreed with the university and dismissed Dr Wang’s claim, saying that notice ran from 3 November to 2 February. He should therefore have lodged his claim by 1 May 2009 and as it was now out of time, it could not be heard.
Mr Wang appealed, saying that even though he was aware of his dismissal on 3 November, part days did not count when calculating the notice period, so his notice had not started until 4 November.
The EAT said there were two linked questions to decide - the effective date of termination (EDT); and the date on which the period of three months beginning with the EDT had come to an end.
Referring to the case of West v Kneels, the EAT said that, in the context of giving notice, the law took no account of fractions of a day and that notice did not always run from the moment it came to the attention of the employee.
Although this was a case about oral notice, the EAT said that it applied equally to written notice.
That being so, the EAT concluded that unless the contract expressly stated when notice was to start or that it was to start immediately, notice ran from the day after it was given.
As Mr Wang’s contract did not expressly state when notice should begin, the EAT decided that it started on 4 November, the day after he received the e-mail. The fact that he was paid until 2 February was irrelevant and did not shorten the contractual period of notice. Any ambiguity caused by giving that incorrect date had to be resolved in Mr Wang’s favour.
His last day of his employment was 3 February and his claim was therefore in time.
If notice is not given then the EDT is when you learn about your dismissal. If notice is given then it must usually be counted in full days and so starts the day after you get it. For instance, if you receive a week’s notice on Thursday 23 June then it ends on Thursday 30 June, making the limitation date 29 September. The simple message of this case though is don’t wait until the last minute to lodge your unfair dismissal claim.