The Employment Appeal Tribunal (EAT) has ruled that absolving an employee from working his or her full notice period does not of itself alter the effective date of termination (EDT) for the purposes of deciding whether or not a claim of unfair dismissal was presented within the three-month time limit allowed for bringing a claim (Wedgewood v Minstergate Hull Ltd.).
Mr Wedgewood worked as an accountant for Minstergate Hull Ltd., a car dealership. On 4 November 2008 he was sent a letter confirming his selection for redundancy and giving him notice, which expired on 1 December 2008. Mr Wedgewood wished to leave earlier than this and agreement was reached in writing whereby he would be released on 26 November but would attend a ‘handover’ meeting on 28 November and be paid up to the expiry of his notice period on 1 December.
On 28 February 2009, Mr Wedgewood brought a claim of unfair dismissal. The issue was whether the agreement between the parties brought forward his EDT. The Employment Tribunal (ET), relying on the judgment in Palfry v Transco plc, held that it did and Mr Wedgewood’s claim was therefore submitted out of time.
The EAT overturned the ET’s decision. In its view, the circumstances in the present case were different from those in Palfry v Transco, where the EDT was brought forward by agreement and pay in lieu of notice was given up until the revised date. In this case, there was no change to the EDT. Although Mr Wedgewood was allowed to leave prior to his EDT, this date was not altered by agreement and he had been paid up to the original date of termination.
The EAT therefore found that the EDT in this case was 1 December 2008 and so Mr Wedgewood’s claim was brought in time.
No reference was made in the judgment to the case of Fitzgerald v University of Kent, which ruled that the EDT is a statutory construct which depends on what actually happened. It is not open to an employer and employee to alter the date by later agreement. In circumstances where an employee wishes to leave before the expiry of his or her notice period and the employer accedes to this request, the original dismissal notice should be withdrawn and a new notice provided showing the revised termination date.
Contact us for advice on any matter relating to redundancy or dismissal.