THE HONOURABLE MRS JUSTICE COX
1.
In a judgment promulgated with reasons on 10 March 2011, the Leicester
Employment Tribunal held, at a Pre-Hearing Review, that the Claimant’s claims
for constructive unfair dismissal and unlawful deduction of wages had been
presented out of time and that the Tribunal had no jurisdiction to determine
them.
2.
The question raised in the Claimant’s appeal is essentially this: when
was the effective date of termination of her employment in circumstances where
she resigned on one date, with immediate effect, but her employer subsequently
said that her resignation would be taken as commencing on a later date, and the
Claimant then proceeded on the basis that her employment had ended on that
later date.
3.
The Employment Judge, sitting alone, decided that it was the earlier
date, which meant that her ET1 had been lodged one day out of time. The
Claimant contends that he erred in so deciding. Alternatively she contends
that, if her ET1 was lodged one day late, the Employment Judge should have held
that it was not reasonably practicable for her to have lodged it within time
because she had been misled by her employer; and that the Tribunal therefore
had jurisdiction to determine her claim.
4.
Before me the Claimant was represented by Mr Capek and the Respondent
was represented by Mr Pallo, both of whom also appeared below.
The facts
5.
By agreement of the parties, the Employment Judge heard no oral
evidence, but read the witness statements from the Claimant and from Moira
Potter, Head of Older People’s Services at the Respondent Council. He also had
an agreed bundle of documents and detailed written submissions from the
representatives on both sides.
6.
The Claimant, Denise Horwood, was employed as a Practice Manager in the
Respondent’s Older People’s Services Team, based at Stamford, having worked for
the Respondent since May 1985. A complaint from a colleague about the
Claimant’s conduct in various respects led to a disciplinary hearing on 29
September 2009. Some of the allegations were found proved and the sanctions
imposed were a final written warning and relegation to a lower tier role with a
lower salary, which meant that the Claimant would no longer be based in the
Stamford Office. She was told that Moira Potter would write to her about her
new working arrangements.
7.
The Claimant appealed against these findings, alleging that there had
been serious defects in the disciplinary procedure adopted and in the
investigation process, and that the sanction imposed was too severe. On 12
January 2010 her appeal was dismissed. The Claimant was informed that she
would be demoted to a social work post and be based in future at the Boston
Office.
8.
The Claimant considered that the procedural defects in the disciplinary
process together with her enforced demotion amounted to a fundamental breach of
contract by her employer, and that her only course of action was to resign and
bring a claim of constructive unfair dismissal.
9.
Shortly after her appeal was dismissed she sought advice and assistance
from Mr Capek. On 27 January 2010, in a letter addressed to Tony McArdle, the
Respondent’s Chief Executive, which was drafted on her behalf by Mr Capek, the
Claimant referred to the background, set out her allegations of fundamental
breach and then said as follows:
“In the circumstances, I am resigning from the employment of LCC
with immediate effect, as I am not prepared to ‘waive’ the Council’s
fundamental breaches of contract towards me.
In these circumstances, there is no requirement on me to work
any ‘notice period’ and I do not intend to do so.
I need only add that I intend in due course to submit a claim of
‘constructive unfair dismissal’ to the Leicester Employment Tribunal.
Accompanying this will be a claim for ‘breach of contract on
termination of employment’ to reclaim the shortfall in my remuneration between
my pay as a ‘practice manager’ and my pay as a ‘social worker’ for the period
from 30.9.09 up to the date of this letter.”
10.
The Claimant sent this letter to Mr McArdle on 28 January, by Special
Delivery. Two copies of this letter were also sent by Special Delivery, on the
same date, to Carole Edwards, Practice Manager at Boston, and to Ian Anderson,
Executive Director of Adult Social Care at Lincoln, each of whom worked in a
different location and in a different location from the Chief Executive.
11.
On 29 January, which was a Friday, the Claimant’s letter to Carole
Edwards was opened by a member of administrative staff at the Boston Area
Office and was date-stamped 29 January 2010. It is agreed that the letter would
have been opened and stamped by an employee of Mouchel, the business services
company that employs all the staff engaged in carrying out the Respondent’s
administrative functions.
12.
Moira Potter’s evidence was that Carole Edwards told her that she did not
read the Claimant’s letter until Monday 1 February. Although the letter was
date-stamped 29 January it lay in Mrs Edwards’ in-tray until she saw it after
the weekend. Mrs Edwards emailed Mrs Potter on 1 February, enclosing a scanned
copy of the Claimant’s letter and asking her to deal with it.
13.
There was no evidence as to whether the letter was read before Monday 1
February by either of the other two addressees. There was no evidence that the
letter to Mr Anderson had arrived, or was opened and date stamped. However,
Mrs Potter discovered that the letter to the Chief Executive was opened and
date-stamped in his department on 29 January and Mr Capek accepted that that
was the position. Mrs Potter stated:
“I am therefore unable to say with certainty whether any of the
letters were actually read on 29 January 2010, but in the normal course of
events I consider it likely that at least one of the other two letters would
have been read by its intended recipient, or at least by someone in the
relevant office on 29 January 2010.”
14.
Mrs Potter requested advice from Human Resources before drafting a
response to the Claimant’s letter. On 2 February she wrote in response to the
Claimant in the following terms:
“Dear Denise
I am writing in response to your letter addressed to Tony
McArdle dated 27th January 2010. Your letter has been forwarded to
me for response by Carole Edwards. I am sorry to hear that you wish to resign
from your position with Lincolnshire County Council.
This letter is to confirm that I accept your resignation from
your Social Work post at the Boston Office. Your resignation will commence
from the date of this letter, 2nd February 2010. As you have
outstanding annual leave, which equates to 9 days, I will ensure this is paid
within your final salary.”
15.
Mrs Potter explained her reasons for writing in these terms as follows:
“There was no special significance in this date. I had not
spoken to Denise directly nor indeed, to my knowledge, had anyone else spoken
to Denise about the issue of her resignation. There had been the telephone
messages between Denise and Carole but they did not involve the issue of
Denise’s resignation. My decision therefore to nominate this date was nothing
to do with any conversation or any agreement that I had with Denise or anyone
on her behalf to extend her employment. Upon reading the letter, I was able to
deduce that Denise intended to resign as at the date the letter was received by
LCC and there was no suggestion that there be any notice pay.
10. I did however take into consideration the fact I was
dealing with this matter after the month end (January 2010) and therefore I
decided it would be a better use of payroll resources to process at least some
payment for the month of February 2010. I considered that it would be far more
convenient, in common with most cases that LCC deal with, for the resignation
to take effect, notionally, from the date I was able to write the letter and in
doing so, as I say above I was not carrying out any agreement with Denise or
giving effect to any discussions that had taken place. There had not been any
discussions. … … Without recourse to Denise, I confirmed that her last day of
employment for the purposes of the question being asked was 2nd
February 2010 and I asked Carole to telephone Denise immediately to inform her
that she was not insured to drive.
11. Carole, I am aware, did telephone Denise on 3rd
February 2010 and as Denise had not yet received my letter, Carole read it out
to her...”
16.
On the afternoon of 3 February Mrs Edwards telephoned the Claimant to
inform her that, as she was no longer an employee, she was no longer permitted
to use her lease car. The Claimant had not yet received Mrs Potter’s letter,
receiving it on 4 February, but Mrs Edwards read it out to her on the telephone
and subsequently emailed Mrs Potter to say “… she understands that she no
longer works for ‘LCC’ from 2/2/10.”
17.
On receipt of Mrs Potter’s letter the Claimant stated that she assumed,
because she regarded it as ambiguous, that her effective date of termination
was now either 1 February (if it meant that 2 February was the first day she
was no longer employed) or 2 February (if it meant that 2 February was her last
day of employment).
18.
The Claimant then received a letter dated 3 February 2010 from Finola
Middleton of the Respondent’s Pensions Section concerning her pension options,
which began,
“I am writing to inform you of your options regarding your
pension benefits on leaving your employment with LCC on 02.02.10 …”
The Claimant understood from this that her effective date of
termination (EDT) was 2 February rather than 1 February. She decided to take
her pension with immediate effect, with the result that it started to be paid
to her with effect from 3 February 2010. Her payslips for January and February
showed that she was paid her salary up to and including 2 February 2010.
19.
The Claimant’s evidence was that she just assumed 2 February was the
effective date of termination of her contract and was content to proceed on
that basis. Although she had lost four days of pension entitlement (from 30
January to 2 February inclusive) she had gained the corresponding 4 days net
salary, which was in fact more beneficial to her. She therefore saw no reason
to query or object to it.
20.
In the weeks that followed the Claimant was being advised on her
Tribunal claim by Mr Capek. In pre-issue correspondence with the Claimant, Mr
Capek emailed a chronology to her on 20 April and informed her that both the
precise date on which she had sent her letter of resignation and the effective
date of termination (EDT) needed to be checked. In her response to him on 21
April the Claimant stated:
“Letter to LCC would have been 26 January 2010. And effective
date of termination was 2 February 2010.”
In fact, that was incorrect because the Claimant later realised
that she had not sent her letter until 28 January. Two days later she informed
Mr Capek on the telephone that Mrs Potter had told her that her leaving date
was 2 February and that her pension was going to be paid with effect from 3
February. On the evidence the Claimant did not query with Mr Capek whether her
EDT might be a different date from 2 February. Nor did Mr Capek raise any
query concerning this himself, despite being aware of the terms of her
resignation letter.
21.
The Claimant’s ET1, dated 28 April 2010, was sent by first class post on
that day and arrived the following day. It was therefore presented to the
Employment Tribunal on 29 April. In section 3 the Claimant stated that her
employment had ended on 2 February 2010. The lengthy particulars of her claims
for constructive unfair dismissal and for unlawful deductions from wages were
all drafted on her behalf by Mr Capek.
22.
In relation to constructive unfair dismissal he referred to the history,
to the Claimant’s letter of resignation and to Mrs Potter’s letter of 2
February “indicating that the Claimant’s resignation would be effective from
that date – therefore the Claimant’s EDT is 2/2/10”.
23.
In relation to the unlawful deductions claim it was alleged that the
reductions in the Claimant’s salary and employer pension contributions meant
that the Respondent had failed to pay wages due to her between 30 September
2009 (the day after the disciplinary sanction of relegation was imposed) and 2
February 2010, that is, the day on which the Claimant stated that her
employment had ended.
24.
In the ET3, in addition to setting out a detailed response resisting the
substantive claims, the Respondent alleged that the claim had been submitted
out of time, requesting a Pre-Hearing Review (PHR) in order for that issue to
be determined.
25.
Essentially the Respondent’s case, as pleaded and as advanced at the
PHR, was that the Claimant had unequivocally resigned without notice on 27
January 2010. Her letter of resignation was received on 29 January. The
Claimant was clearly accepting the alleged fundamental breach of contract as
being sufficient to permit her to resign without notice pursuant to section
95(1)(c) of the Employment Rights Act 1996. There is no requirement, in
statute or at common law, for an employer to accept an employee’s resignation.
Notwithstanding Mrs Potter’s letter of 2 February 2010, which had no effect in
law, the EDT had already occurred on 29 January, when the Claimant’s letter was
opened and date-stamped by two of the addressees on behalf of the Respondent.
The latest date for presentation of the ET1 was therefore 28 April and it was
received on the 29th. There was therefore no jurisdiction to
determine the claim.
26.
It appears that the PHR was initially fixed for 23 September 2010, but
the hearing was adjourned on that occasion at the suggestion of the Employment
Judge. Having read the papers and the parties’ written submissions he
apparently directed both parties to undertake further legal research and
referred to recent authorities on the effective date of termination. It was
agreed that a fresh PHR would take place on 21 January 2011 and on that date
the Employment Judge considered and determined the issue.
27.
In his reasoned judgment, after briefly summarising the facts, the
Employment Judge referred to the provisions of section 97(1) and section 111 of
the Employment Rights Act 1996. At paragraph 10 he identified the
issues as being:
“10.1 When was the effective date of termination?
10.2 Was the date varied and if
so what was the new date?”
28.
The Employment Judge referred to having taken into account a number of
authorities, which he listed at paragraph 11. In relation to the first issue
he found as follows:
“12. The first issue is to identify the effective date of
termination. It is trite law that the effective date of termination does not
occur until there has been communication of dismissal or, in a case of
constructive dismissal, communication of the employee’s resignation. It is common
ground that this occurred on 29 January 2010. Mr Capek seeks to argue that
there is no evidence that any of the addressees actually read the letter on 29
January but I am satisfied that there is nothing of substance in that
argument. There is no requirement that the actual addressee reads the letter.
So long as someone from the respondent’s organisation does so, then
communication is effected. The letter was read by at least one employee of the
respondent on 29 January 2010 as it was opened and dated-stamped that day.
13. I am therefore satisfied that communication of resignation
was effected on 29 January 2010. As the resignation was without notice, and
pursuant to S97(1)(b) ERA 1966, the effective date of termination was 29
January 2010.”
29.
In relation to the second issue, referring to the decision of the
Employment Appeal Tribunal in Wedgewood v. Minstergate Hull Ltd
(UKEAT/0137/10/DA) the Employment Judge said as follows at paragraphs 16 – 18:
“16. It is clear therefore that as a matter of law the effective
date of termination can be altered provided there is agreement to do so. In
this case there were no discussions between the claimant and Mrs Potter over
the relevant period and therefore there could not have been any agreement on
the effective date of termination or anything else for that matter. In the
case law cited to me, where there has been a variation of the effective date of
termination there is always some form or agreement between the parties. There
was no agreement whatsoever in this case.
17. I am therefore satisfied that the effective date of
termination remained 29 January 2010. There was no variation of the effective
date of termination and Mrs Potter’s letter was not capable of doing so. In a
sense the letter is an unnecessary distraction. If Mrs Potter had for example
written to say that the effective date of termination was now earlier, it would
not thereby have been brought forward. Mrs Horwood clearly believed that the
effective date of termination was 29 January 2010. There is nothing to suggest
that she was misled.
18. The reality is that the state of affairs arises as a result
of a misunderstanding between Mrs Horwood and her legal adviser. It is clear
from Mr Capek’s statement that there was some misunderstanding between him and
his client. Mr Capek appears to have initially proceeded on the basis that the
effective date of termination was 29 January. He was then contacted by the
claimant to say that Mrs Potter had written to her to say that her termination
date was 2 February but did not check the point. When he drafted the claim
form he therefore put down 2 February 2010 as the date of dismissal. He was
under the impression (wrongly as it turned out) that the deadline for
submission was 1 May 2010 and thus sent the claim form by post on or about 28
April 2010 assuming that the claim would be received comfortably in time.”
30.
The Judge therefore concluded that the claim had been presented outside
the time limit required by section 111.
31.
He then turned to consider whether the Claimant had shown that it was
not reasonably practicable for her claim to have been presented in time. On
this issue he found as follows:
“19. … this was a case where it was clearly reasonably
practicable for the claim to have been presented in time. Had it not been for
the misunderstanding between the claimant and her adviser it would have been
received in time. There is nothing to suggest that any impediment existed
preventing either the claimant or Mr Capek from submitting the claim sooner.
The tragedy is of course that if instead of posting the claim form on 28 April
2010 the ET1 had been faxed or e-mailed (which is very common these days) it
would have been in time.
20. The present circumstances arise, in my judgment, as a result
of a misunderstanding between the claimant and her adviser and in particular
the failure to check the circumstances regarding Mrs Potter’s letter.”
32.
The Employment Judge concluded that both the claims had been presented
out of time and they were therefore both dismissed. He did not, however,
address the Claimant’s unlawful deductions claim specifically, or give any
reasons for finding that that claim had also been presented out of time. That
omission is strange because the Employment Judge’s failure to deal with this
matter, in his oral ruling on the day of the hearing, caused Mr Capek to write
to him, on 24 January 2011, asking him to deal with his arguments on this point
specifically in his written reasons. The Employment Judge did not do so. Mr
Pallo accepts that the Judge did not deal with this specifically, but he
submits that the Employment Appeal Tribunal can now correct this error,
depending on the finding in relation to the claim for constructive unfair
dismissal.
33.
The Claimant then submitted a detailed application for a review of the
Employment Tribunal’s decision, in the interests of justice. This was refused
on 11 April 2011, the Employment Judge stating that there appeared to be no
reasonable prospect of the decision being varied or revoked.
The appeal
34.
The Claimant has appealed against both the substantive decision (grounds
1 – 5) and the refusal to review (grounds 6 – 15), but the issues raised are
common to both appeals. Further, whilst there are a number of different
grounds being advanced their focus is really a narrow one. It is submitted
that the Employment Judge was wrong to conclude that the EDT was 29 January
rather than 2 February. Alternatively, in the unusual circumstances of this
case, it is said that the Claimant should have been allowed the benefit of the
“not reasonably practicable” extension of time provision under section
111(2)(b).
35.
By section 111(2) of the 1996 Act an Employment Tribunal shall not
consider a complaint under this section unless it is presented to the Tribunal
–
“(a) Before the end of the period of three months beginning with
the effective date of termination, or
(b) within such further period as the Tribunal considers
reasonable in a case where it was satisfied that it was not reasonably
practicable for the complaint to be presented before the end of that period of
three months.”
36.
There are essentially four issues arising from the Claimant’s grounds of
appeal, as follows:
(a) What was the effective
date of termination (EDT) of her employment?
(b) Was the EDT varied, by agreement
or otherwise?
(c) Should the Employment
Judge have found on the evidence that he was satisfied that it was not
reasonably practicable for the Claimant’s claim to be presented before 28 April
2010?
(d) Does the
Claimant’s unlawful deductions claim survive, so as to require a reasoned
determination?
I consider these issues in turn.
1. What was the Effective Date of Termination?
37.
So far as is relevant section 97(1) of the ERA provides:
“(1) … in this Part ‘the effective date of termination’-
(a) in relation to an employee whose
contract of employment is terminated by notice, whether given by his employer
or by the employee, means the date on which notice expires,
(b) in relation to an employee whose
contract of employment is terminated without notice, means the date on which
the termination takes effect …”
38.
It has now been emphasised in a number of appellate decisions that the
expression “effective date of termination” (EDT) is not a term of contract law,
but a statutory construct specifically defined for the purposes of a
legislative scheme of employment rights based on a personal contract. It is
designed to hold the balance between employer and employee and conventional
principles of contract law should not come into play in its interpretation. As
the Supreme Court confirmed recently, in Gisda Cyf v. Barratt
[2010] UKSC 41,
“The effective date of the termination of employment is a term
of art that has been used in successive enactments to signify the date on which
an employee is to be taken as having been dismissed.” (paragraph 5)
and,
“The construction and application of [section 97] must be guided
principally by the underlying purpose of the statute, viz the protection of the
employee’s rights.” (paragraph 41)
39.
That case and others before it have considered section 97 in the context
of an employer who dismisses an employee without notice. The question to be
determined in those cases, for the purposes of the time limit for lodging an
unfair dismissal claim, has been whether the termination of employment took
effect on the date of the employer’s decision to terminate, on the date when
the letter was sent, on the date when the letter was delivered, or was read or,
if not read, when the employee had had a reasonable opportunity of learning of
the contents of the letter.
40.
In Gisda Cyf the Supreme Court upheld, as firmly anchored
to the overall objective of the legislation, the well established rule that an
employee is entitled either to be informed, or at least to have a reasonable
chance of finding out that he has been dismissed before time begins to run
against him.
41.
The same reasoning has been applied in relation to the need for an
employee to communicate to his employer his decision to resign and claim
constructive unfair dismissal. As the EAT pointed out in Edwards v.
Surrey Police [1999] IRLR 456, employers need to know where they stand
when an employee leaves. It is therefore clear, as a matter of general
principle,
“…that before a contract of employment can be terminated there
must have been communication by words, or by conduct, such as to inform the
other party to the contract that it is indeed at an end. … unless there has
been proper communication from the employee of the fact that they are regarding
themselves as no longer employed, by words or conduct, their employment
relationship has not terminated.”
42.
However, the concerns expressed in the authorities as to the need for
employees to know that they have been dismissed before they can be expected to
take action, given that the purpose of the legislation is to protect employees’
rights, do not arise when the decision to leave is that of the employee.
43.
This has led to the EAT adopting a different approach to the question of
an employee’s communication of that decision and the EDT. In the case of George
v. Luton Borough Council (EAT/0311/03/1609 (unreported)), the
claimant/employee wrote a letter dated 30 July to a named manager of her
employer, resigning with effect from 31 July. The letter was received by the
Council on 1 August, when it was opened and date-stamped. The addressee was
not there on 1 August so the letter was passed to a personal adviser, who
acknowledged it on 2 August and accepted the resignation. The claimant,
alleging unfair constructive dismissal, issued her ET1 on 1 November. The
Employment Tribunal held that the claim was out of time.
44.
Upholding the Tribunal’s decision, the EAT held that,
“10 … it is important to bear in mind when considering issues of
constructive dismissal, a claim to have been constructively dismissed, that it
is simply an example of an ordinary right in contract entitling a party to
treat a contract as being terminated on the basis of a repudiatory breach by
the other contracting party. The right to treat the contract as so terminated
is something that must of course be communicated to the other party.
……
We are quite satisfied, as was the Employment Tribunal, that the
letter was such an acceptance of repudiation. Is it sufficient that the letter
should be received and opened or is more required in the sense that a person in
authority must be proved to have actually seen and read the letter? Bearing in
mind that, as it seems to us, when determining a contract, notice is required
to be given not to a named individual but to the other contracting party, it
seems to us that the communication is made when the letter is received, or if
we are wrong about that, when the letter is opened.”
45.
Recognising the distinction between this case and cases where an
employer terminates the contract of employment, in which case an employee
should have the termination communicated to him personally, the Employment
Appeal Tribunal went on to explain the reason for this difference of approach
as follows:
“14 ……that does not necessarily apply in a case where an
employee is giving notice to a large organisation such as Luton Council, and
where he has to do no more than communicate to the Council, not necessarily to
a particular individual, that he has treated his contract of employment as
having been determined. It seems to us that the receipt of the letter by the
Council, as evidenced by the fact that it was opened and date-stamped on 1
August, is a sufficient communication to the Council. We think there would be
a great deal of mischief if it could be argued in cases where notice was
required to be given by a particular date that, although notice was received by
the organisation in question, for various administrative reasons the letter did
not get to the appropriate person for consideration until some time after the
date of its actual receipt and opening. This is not a case of a letter that is
simply lying in a postbox over a weekend, this is a letter that was clearly
opened, date-stamped and passed on for someone to deal with. We know not in
fact whether it reached [the addressee] on 2 or 1 August, but are satisfied
that the communication was effective on 1 August when the letter was received
and opened.”
46.
The same reasoning was applied by the EAT in the case of Potter
and Others v. RJ Temple Plc (in Liquidation) (2003) UKEAT/0478/03/LA.
In that case the EDT of employment of an employee who sent a letter notifying
his immediate resignation by fax was held to be the date upon which the fax was
received by the employer. The fax was sent at 20.21 on 13 September 2002 to the
employer’s head office and there was no evidence that anyone at head office had
read the letter on that date.
47.
Agreeing with the reasoning in George and considering that
it reflected the intention and purpose of the 1996 Act, the EAT held as
follows:
“40 If the effective date of termination is the date on which
the fax was received in the Company’s office, a sensible result is achieved.
This is the date on which Mr Potter, having made his election, communicated it
in the clearest terms. As the Tribunal found, he intended to resign with
effect from that date, and no longer considered himself bound from that date.
He had a fax confirmation sheet to tell him when his communication was
received.
41 If receipt of the fax is insufficient to fix the date of termination,
Mr Potter could not with certainty know what date it was. It might have been
as late as 16th September, when the office opened on Monday. But if
an authorised member of staff read it on the Friday, Saturday or Sunday, the
date would be earlier. It is certainly not out of the question for a senior
member of management to be in the office late, or go in the office at the
weekend. So Mr Potter could not sensibly rely in any event on the date being
later than 13th September.
42 Further if, as Mr O’Dair submits, the effective date of
termination depends on receipt of a fax at a time when the office is open,
there will be room in other cases for debate and doubt. Many offices have no
fixed opening hours.”
48.
I agree with the reasoning in both these decisions, which I regard as
compelling. It follows that I do not accept the submissions of Mr Capek that,
notwithstanding the Claimant’s letter of 27 January, the EDT was in fact set by
the Respondent in the letter of 2 February (ground 1); or that the earliest
date for the EDT was 1 February, because this was apparently the first date on
which the Claimant’s letter of resignation was actually read by any one of the
three intended recipients (ground 3).
49.
The Claimant’s letter of resignation, with immediate effect, was
unequivocal in its terms. Once that letter was received at the offices of Mr
McArdle and Mrs Edwards, and was opened and date-stamped by their
administrative staff, the Claimant’s communication of her resignation was
effective. Indeed, it is clear from the Claimant’s first witness statement
that this was her own expectation, at least until 3 February, because at
paragraph 5 she said this:
“I had certainly expected these letters to reach the locations
at which these individuals were based the next day – ie on Friday 29.01.10.
Assuming that at least one of the named individuals had read the letter on that
date, I therefore thought that 29.01.10 would prove to be my ‘effective date of
termination’ (EDT).”
50.
The fact that the letter may not have been read by any of its intended
recipients on 29 January does not prevent that date from being the EDT, for the
reasons explained in both George and Potter. As Mr
Pallo pointed out, if communication to the Respondent was effected only on the
date when the letters were read by their addressees, a number of conceptual
difficulties would arise. What would happen, for example, if the Chief
Executive had not himself read the letter on 29 January, but his immediate
subordinate had? What if all three recipients of the letter had left their
employment, or taken extended leave, or gone on sabbatical on 29 January, so
that none of them ever read the letter at any time? For good reason, not least
the interests of the employee herself, the law does not allow the effective
date of communication of her resignation to be dependent upon such
uncertainties.
51.
Nor does it matter, in my view, that the administrative staff who opened
the letters were not themselves directly employed by the Respondent. Clearly,
as employees of the company contracted to provide business and administration
services to the Respondent, they were acting at all times as agents of the
Respondent and, as such, were authorised to open and date-stamp all letters
arriving for the attention of the Respondent’s employees.
52.
In the circumstances the natural consequence of the Claimant’s
communication being effected on 29 January is that Mrs Potter could not
subsequently set the EDT as 2 February. Her decision, apparently for payroll
and administrative purposes, to inform the Claimant that her resignation would
commence from a later date could not alter the EDT, which had already
occurred. Nor could the fact that the Claimant continued to receive salary
until 2 February and her pension from 3 February.
53.
For these reasons, in my judgment, the Employment Judge was right to
conclude that the EDT in this case was 29 January 2010.
2. Was the EDT subsequently varied?
54.
Mr Capek’s essential submission is that, even if the EDT was originally
29 January, that date was subsequently varied by agreement of the parties.
Referring to the decisions of the EAT in Palfrey v Transco PLC
[2004] IRLR 916 and Wedgewood v Minstergate Hull Ltd
UKEAT/0137/10/DA he submits that these decisions are authority for the
proposition that an EDT can be changed by agreement and that it was so changed
on the evidence in this case. Submitting that the EAT should not adopt an
“overly legalistic” analysis to this question he contends that, even if there
was no express agreement between the parties, by the letter from Mrs Potter of
2 February the Respondent either unilaterally varied the EDT and the Claimant
accepted that variation, or the Respondent made an offer to change the EDT,
which offer was impliedly accepted by the Appellant.
55.
It is important to understand the factual basis for the EAT’s decision,
in Palfrey, that the EDT could be changed. The employer gave a
lengthy period of notice of termination for redundancy to the employee,
commencing on 25 February 2003, with the last day of his employment stated to
be 31 May 2003. The proposal was that he should work out his full period of
notice but he was also told that, if he wished to bring forward his date of
termination of employment, then there could be an agreement instead to pay a
cash sum instead of the notice period. Negotiations then followed and
correspondence showed that the parties agreed that the employee’s final leaving
date would in fact be 31 March 2003. The Claimant’s ET1 was not lodged within
3 months of that earlier date and he sought to argue that the EDT had remained
31 May.
56.
Referring to the provision in section 97(1)(a) that, where a contract of
employment is terminated by notice, the EDT means the date on which that notice
expires, the EAT held that the employment tribunal had been right to hold on
the evidence that the EDT was in this case the 31 March. That was not only the
day on which the employee last worked, but it was the day after which any
payment that was made was paid in lieu of notice, and that sum was received in
full, together with the redundancy payment, on 15 April. This was not a case
where the employee had remained in employment until the 31 May, but was just
not required to work during that period. The Tribunal were right to conclude
that, in effect, there had been an implied withdrawal of the original notice
prescribing termination on 31 May and a substitution, by way of a fresh notice
in subsequent correspondence, of a period terminating on 31 March.
Alternatively there had been an agreed variation of the original notice.
57.
At paragraph 12, Burton J giving the judgment of the EAT said as
follows:
“There must be a real risk that if, in fact, what occurred here
is not permissible, so as to vary or replace the original notice, that where
there are consensual discussions between an employee and an employer during a
notice period, which lead to an agreed date of termination, it might be capable
of being suggested that that amounted to a consensual termination and that the
original notice by the employer was not causative, but that the employment
resulted from an agreement between the parties, such that there could be no
claim for dismissal or unfair dismissal at the hands of an applicant. That is
plainly a scenario which should not be permitted….”
58.
The EAT was referred, in that case, to the decision of the Court of
Appeal in Fitzgerald v University of Kent at Canterbury [2004] EWCA Civ 143, where, after the claimant’s employment had terminated on 2 March,
it was agreed between the parties that the claimant should be treated as having
accepted retirement as from 28 February. In his judgment, Sedley LJ described
the EDT as “…a statutory construct which depends on what has happened between
the parties over time and not on what they may agree to treat as having
happened”. The parties were free to make binding agreements for pension or
other purposes outside the statute, fixing dates that do not correspond with
events. However an agreement, whereby subsequent to the EDT a date was arrived
at consensually antedating the EDT, clearly fell within the description of a
provision in an agreement which purports to limit the operation of section 111
of the 1996 Act and thus of section 97. In these circumstances the Court was
not prepared to allow a situation where, after the EDT, the parties sought to
rewrite what had happened. That case was decided on entirely different facts
and was held to be of no assistance to Mr Palfrey.
59.
The claimant employee in Wedgewood was given notice of
termination for redundancy on 4 November 2008, to expire on 1 December. He
worked for most of his notice period but, on 26 November, asked if he could
leave early. The employer wrote a letter to him later that day, counter-signed
by the claimant, confirming that he would be released on 26 November and would
still be paid up to and including his notice period date of 1 December. The
ET1 was submitted on 28 February 2009, which the tribunal held was out of time
because the EDT was 26 November.
60.
Allowing the claimant’s appeal the EAT held that the EDT had not altered
as a result of the employer absolving the claimant from working his period of
notice. Whilst, as shown by the facts of Palfrey, the EDT could
be altered by the parties expressly agreeing to do so in certain circumstances,
that had not occurred on the facts of this case because the employer’s letter
of 26 November did not alter the EDT of 1 December.
61.
In the present case Mr Capek realistically accepts that the evidence
does not show there to have been any express agreement between the parties as
to any change to the EDT. On the contrary, Mrs Potter made it clear that there
was no discussion whatsoever with the Claimant about the EDT after 29 January,
before she wrote to her giving the date of 2 February as the date she would take
as the date of termination, for what were essentially payroll and
administrative purposes. Mr Capek therefore resorts to a submission that, on
analysis, there was either a unilateral variation by the employer, or an offer
by the employer to vary the EDT, either of which was impliedly accepted by the
Claimant.
62.
However, none of the authorities to which he referred provides any
support for such an analysis, in circumstances where the Claimant had already
communicated her resignation, in unambiguous terms and with immediate effect,
on 29 January. Indeed the decision in Fitzgerald indicates that,
for good reason, it is not open to the parties to seek retrospectively to alter
an EDT and to bypass the effects of section 97. A clear distinction is to be
drawn between cases such as Palfrey, where the parties reach a
clear agreement as to an earlier termination date during the notice period, and
cases such as the present, where the employee herself resigns with immediate
effect and effectively communicates that decision to her employer, whereupon
the EDT is fixed and cannot retrospectively be altered.
63.
On the evidence in this case the Claimant’s contract had come to an end
on 29 January. Mrs Potter could not therefore unilaterally alter the
termination date of a contract which had already ceased to exist. Further, the
notion that on the facts of this case the correct legal analysis is that there
was acceptance by silence or implied consent by the Claimant to her employer’s
subsequent “offer” to reinstate the contract and vary the EDT is in my judgment
entirely misconceived. Such an analysis has no place in the statutory regime
governing the determination of an employee’s effective date of termination of
employment, where the need for clarity and certainty is paramount, as the
authorities make clear. This is not to adopt what Mr Capek criticises as an
overly legalistic approach. Rather it reflects the sound public policy
considerations underpinning the decisions in the cases to which I have
referred, and the inescapable fact that on 29 January this Claimant’s contract
came to an end following the communication of her resignation with immediate
effect.
64.
The Employment Judge was correct, in my view, to conclude that there was
no subsequent variation of the EDT in this case.
3. Reasonable practicability
65.
Mr Capek’s submission is that, even if the EDT was 29 January, the
Claimant had acquired a mistaken, yet reasonable belief that the EDT was 2
February. This was because she was misled by her employer, as a result of Mrs
Potter’s letter of 2 February, and the Respondent should not therefore be
permitted to take advantage of the situation. The Employment Judge should have
found that it was not reasonably practicable in these circumstances for her ET1
to be presented by 28 April and given her the benefits of the extension of time
provisions in section 111(2)(b) and section 23(4) (wages deductions claim) of
the 1996 Act.
66.
I cannot accept this submission. Nor do I consider it helpful, in
considering this point, to have regard to those cases dealing with letters
terminating employment which are expressed in ambiguous terms, such as Chapman
v Letherby and Christopher Ltd [1981] IRLR 440, and Octopus
Jewellery v Stephenson UKEAT 0148/07 to which Mr Capek referred. The
Claimant’s letter of resignation was unambiguous and unequivocal, and the
letter from Mrs Potter was written for her own purposes and was of no effect so
far as the EDT is concerned. The Claimant was well aware that her letters were
likely to reach their destination by 29 January and on her own evidence,
understood at first that that date would be her EDT.
67.
On the evidence the Employment Judge was entitled to conclude as he did
at paragraph 18 that the problem had arisen because of a misunderstanding
between the Claimant and her legal adviser. Whilst both of them had initially
proceeded on the basis that the EDT was 29 January, the point was not picked up
when the Claimant contacted Mr Capek and referred to the later date, or when Mr
Capek came to complete the ET1 on her behalf and send it to the Tribunal by
post.
68.
These were unfortunate events indeed but, as the Employment Judge found,
there was no evidence to suggest that the Claimant was unable to present her
claim before 28 April, save for the fact that both she and her adviser were
operating under the erroneous assumption that the EDT was 2 February. In the
event, had the ET1 been faxed or submitted online on that date it would have
been lodged in time. The hurdle to surmount in this section is a high one and
the Employment Judge was entitled to conclude on the evidence before him that
it was reasonably practicable for the ET1 to have been lodged in time and that
time should not therefore be extended.
4. Unlawful deductions claim
69.
I can deal with this point very shortly in the circumstances, given my
conclusions on the constructive unfair dismissal claim.
70.
Mr Capek submits that, even if the EDT was 29 January, the Claimant
continued to receive salary up to 2 February even though this four day period
extended beyond the EDT. The time limit for this claim was therefore 1 May and
the ET1 was within time. Alternatively, he submits that since the Claimant did
not actually receive her wages for the period up to 2 February until 23
February, when the final shortfall alleged occurred, the final date for
submitting the unlawful deductions claim was 22 May and her ET1 was well within
time.
71.
I do not accept either of these analyses. Since the EDT was and always
remained 29 January, I accept Mr Pallo’s submission that the payments made to
the Claimant by the Respondent, up to and including 2 February, constituted ex
gratia payments by the Respondent and cannot form the basis of a contractual
relationship between employer and employee in the circumstances. The unlawful
deductions claim could not therefore survive and, although the Employment Judge
gave no reasons specifically in respect of this point, his decision that this
claim should also be dismissed was correct.
72.
In his remaining grounds of appeal Mr Capek had complained of the
Employment Judge’s erroneous failure to review his decision, making a number of
procedural complaints and submitting that his review decision did not withstand
the Meek test. Given my conclusion on the main points in
this appeal, I do not consider that any of these criticisms disclose an error
of law by the Employment Judge in arriving at what I find to be a correct and
sufficiently reasoned decision on the evidence he heard. He was entitled to
refuse the application for a review.
73.
There was little factual dispute in this case, as demonstrated by the
fact that no oral evidence was called and the parties agreed to proceed on the
basis of the evidence contained in the witness statements. It appears that a
statement initially submitted by Mr Capek was withdrawn before the PHR and that
he did not give evidence himself at the hearing. It is correct that the
Employment Judge seems to have had regard to that statement in paragraphs 18
and 22 of his judgment. However, the matters referred to in these paragraphs
mirror both the contents of the Claimant’s first witness statement (at
paragraphs 28-33) and the written submissions that were presented by Mr Capek
on the Claimant’s behalf. The Employment Judge did not therefore take into
account any matters which were not properly before him and this does not seem
to me to give rise to any ground of appeal against his decision.
74.
For all these reasons the Claimant’s appeals must be dismissed.
