Ending the contract
Labour & European Law Review Weekly Issue 270 24 May 2012
Anyone wanting to lodge a claim for unfair dismissal has to do so within three months of the effective date of termination (EDT) of their employment contract. In Horwood v Lincolnshire County Council, the Employment Appeal Tribunal (EAT) said that the EDT was the date on which the employee’s letter of dismissal was opened and date-stamped by the Council’s administrative staff.
Following complaints from a colleague, Mrs Horwood was disciplined in September 2009. She received a final written warning, told that she would be moved to a different office and would be demoted.
After unsuccessfully appealing against the decision, she wrote to her employer on 27 January 2010, resigning with immediate effect. She sent the letter by special delivery the following day to the chief executive, with copies to a practice manager, Mrs Edwards, and the executive director of adult social care.
The letters to the practice manager and the CEO were opened and date-stamped on Friday, 29 January, although Mrs Edwards didn’t read her copy until Monday 1 February. The Council’s Head of Older People’s Services, Mrs Potter, replied on 2 February, confirming the resignation and stating that it would take effect that day.
Mrs Horwood was paid up to and including Tuesday 2 February and her pension commenced the following day.
She made a claim of unfair constructive dismissal dated 28 April which arrived with the Tribunal the following day. The Council argued that she was out of time, saying that the EDT was 29 January when the letter was opened and date-stamped.
And the employment judge agreed with the Council, saying that there was no requirement for the addressee to have read the letter. As long as someone from the Council had read it (in this case the person who opened and dated-stamped it on 29 January), that was all that was needed.
Although the EDT can be altered if both parties agree to it, the letter from Mrs Potter on 2 February did not constitute a variation. As it had been reasonably practicable for Mrs Horwood to have brought her claim in time, there was no reason to extend it.
The EAT dismissed her appeal, saying that her letter of resignation was “unequivocal in its terms”. Once it had arrived at the offices of the chief executive and the practice manager and had been opened and date-stamped by one of the Council’s administrative staff, her resignation became effective.
Nor could the EDT be varied retrospectively. The EAT drew a clear distinction between a case in which the parties agreed an earlier termination date during the notice period, and the present case in which Mrs Horwood had resigned with immediate effect.
The EDT was fixed at that point and could not be altered retrospectively. Her contract had come to an end on 29 January and Mrs Potter could not unilaterally alter the termination date of a contract which had already ceased to exist.
Mrs Horwood then argued that, even if the EDT was January 29, she had been misled by her employer’s letter of 2 February which had given her the reasonable belief that it was 2 February and the Council should not be allowed to take advantage of that.
The EAT dismissed that argument, saying that Mrs Horwood was well aware that her letters were likely to reach their destination by 29 January and on her own evidence, had initially acknowledged that date was the EDT.
The employment judge was therefore right to conclude that it had been reasonably practicable for Mrs Horwood to have presented her claim in time and the limit should not therefore be extended.
This case is an excellent illustration of the law surrounding effective dates of termination. It is not enough for a claimant to rely solely on the information contained in a letter from their employer, particularly for a case of constructive dismissal.