When an employment contract is terminated by notice, the date of termination is the date on which notice expires. In Gardner v The Coopers Company & Coborn School, the Employment Appeal Tribunal (EAT) considered the date when the notice period began in order to determine the date of termination of employment.
Ms Gardner was employed as a part-time IT teacher. In May 2017, she was notified that unless a suitable alternative role was found for her, she would be given notice of redundancy with a termination date of 31 August in accordance with the “Burgundy Book” terms.
In the event, she was offered what was considered a suitable alternative job as a maths teacher on 29 June. As the new job was different to the old one, she was entitled to a statutory trial period of four weeks. Ms Gardner clarified her position with the school and it was understood that if the role turned out to be unsuitable during those four weeks, she would be made redundant on 31 December.
The trial period did not go well, and a letter was then sent to Ms Garner’s home address and her school email address on 11 October confirming that she would be dismissed by reason of redundancy on 31 December. The letter also made clear that she had the right to appeal within seven working days of the date of the letter.
However, as she was on holiday (which the school knew about) she did not have the opportunity to read the email (forwarded to her by her union representative) until she returned on 7 November, at which point she lodged an appeal. The school then refused to extend the time to consider it.
The tribunal held that although there was a genuine redundancy, the employer had failed to afford her the opportunity to appeal by dismissing her on 31 December 2017 “without any right for any further notice”. As a fair employer would have extended the time to consider her appeal, the dismissal was unfair.
However, it then went on to hold that had the right to an appeal been offered to Ms Gardner, there was only a 10 per cent chance that she would have been successful and in accordance with the Polkey principle, it reduced her award of compensation by 90 per cent.
Ms Gardner appealed on the grounds that the employment tribunal had not properly considered when notice began to run. She relied on paragraph 4.1 of the Burgundy Book which states that all teachers are entitled to a minimum of two months’ notice (three months in the summer term), terminating at the end of a school term. This was defined in paragraph 1 as being 31 August for the summer term, 31 December for the autumn term and 30 April for the spring term. She therefore claimed her employment should not have ended until the end of the spring term.
The employer cross appealed on the grounds that the award of £500 for loss of statutory rights should also have been reduced in accordance with the Polkey reduction. The loss of statutory rights relates to the fact that employees have to start afresh in terms of building up enough service to qualify for certain statutory rights such as the right to claim unfair dismissal.
Allowing her appeal, the EAT held that the tribunal had not given sufficient reasons for its finding that Ms Gardner’s employment ended on 31 December and in particular, whether the letter dated 11 October 2017 had been (or should be deemed to have been) delivered to her.
“In essence” said the EAT, “… the parties are entitled to know on what basis they have won or lost. In my judgment, the ET [employment tribunal] in this case failed to do that in relation to the issue of the validity of the notice of termination, I therefore allow the appeal.”
It also upheld the cross appeal, finding that the employment tribunal had made an error of law and that the same Polkey reduction should apply to the loss of statutory rights.
The case was returned to a freshly constituted tribunal to determine when notice began.
While this case has returned to the employment tribunal to decide when notice began, readers may already be aware of the Supreme Court’s decision in Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood (weekly LELR 517) which held that absent of any specific contractual provision, contractual notice sent by post does not take effect until the employee has read the letter or has had a reasonable opportunity of doing so.