Or, to be more precise, and rather less brutal, when did your employment terminate? In technical employment law parlance, what is the “Effective Date of Termination (EDT)”? This is a crucially important date in cases where employer-employee have fallen out because it is from the EDT that time limits for issuing proceedings at an Employment Tribunal (ET) are calculated.
An employee usually has three months in which to issue his/her proceedings – e.g. for unfair dismissal or for discrimination claims. Problems can arise when the papers commencing the claim (called the ET1) are lodged close to the three (calendar) month less one day limit. The ET is very strict about accepting claims outside the three month limit and will only do so if it was not “reasonably practical” for the proceedings to have been lodged within that time.
A recent Court of Appeal case, called Gisda Cyf v Barratt, was argued over this issue. The Claimant’s employers informed her of her summary dismissal on grounds of her “inappropriate conduct” by RECORDED DELIVERY letter on 29th November 2006. The letter was signed for by a relative but the Claimant herself was away from home for a few days. She did not read it until her return home on 4th December and she did not issue her ET1 until 2nd March 2007. An issue then arose as to whether she was in time or not. On the basis of the date of the letter and delivery to her, she was not. But, if her EDT was the date she read it then she was. The CA took the latter view on the grounds that the employee had to be certain of the EDT. Therefore she could pursue her claim and the employers had to expend time and money in defending it. The decision was not unanimous though: it was a three man court and the result was 2-1 in favour of Ms. Barratt.
This being the law, you wouldn’t expect the same rule to apply on constructive dismissal, i.e. where the employee resigns and leaves there and then. The EDT in that case is when the letter is physically received by the employer (such as the post-room) and not the relevant line manager or HR officer.
Resignations by fax will take place when the fax is received by the employer’s fax machine and not when subsequently read. The same rule will presumably apply to email transmissions because the common thread running through these cases is that the employee must have certainty of when the EDT is and this can only be achieved through reliance on the date of delivery not date of reading.
The moral for employers here is don’t dismiss purely by way of a letter. Get the employee into a meeting, give the news orally and then confirm it in writing, preferably by handing the letter to the employee at the same meeting. The lesson for employees (and their advisers) is don’t leave issuing proceedings until the last minute.
As ever, if you need advice on any of these issues, call me on 0207 464 8433 or email me at michaelscutt@dalelangley.co.uk
(The ELA Briefing magazine (Vol 16 No. 8) was invaluable in preparing this post.)
When did you terminate? originally appeared on Jobsworth by Michael Scutt on 15/10/2009.