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When does a dismissal take effect?

30th April 2011
Ascertaining the actual date that a dismissal takes effect is crucial in determining the deadline for submitting a claim of unfair dismissal in an Employment Tribunal. In addition it is equally crucial in determining the amount of pay owed to a departing employee.

In the case of Wang v University of Keele the Employment Appeals Tribunal has ruled that  unless a contract says otherwise, contractual notice runs from the day AFTER notice is given. This case concerned an individual that was dismissed by an e-mail that was sent and read on the the afternoon of the 3rd November. The contract provided for 3 months notice.The individual submitted his claim to the Employment Tribunal on the 2nd May following. The Employment Tribunal dismissed the claim on the basis that it had been submitted one day out of time, as the Employment Tribunal counted the notice as running from the 3rd November to the following 2nd February. On this basis the final date for the claim of unfair dismissal to be received at the Employment Tribunal would be the 1st May, as the time limit for submitting a claim of unfair dismissal is three months from the dismissal (with the date of the dismissal counting as the first date in that three months; so a claim relating to a dismissal that took effect on the say the 2nd January must be received at the Employment Tribunal by no later than the 1st April following). As the Regulations provide very restricted circumstances in which a claim can be allowed out of time, the issue of calculating the final date of the notice period was crucial in this case.

After a review of the cases on this issue the Employment Appeals Tribunal concluded that the notice period in this case started to run on the 4th November, so the three months notice expired on the following 3rd February. So the final date for submitting the claim of unfair dismissal in the Employment Tribunal was the 2nd May. The Employment Appeals Tribunal ruled that it was irrelevant that the individual had in fact been paid to and stopped work on the 2nd February (not the 3rd February). It was noted that notice once given can only be shortened by agreement (which of course had not happened).

The effective date of termination can be subject to a lot of confusion. Case law already indicated that notice given verbally starts on the following day. This case confirms that the same approach should be taken to notice given in writing. The case confirms that a part day cannot count as the first full day of a notice period. So, if an employee is given notice at 5pm on a Friday, the first day of the notice period will be the following day. So, if a contract of employment provides for 1 months notice, and the notice letter is dated and given to the employee on say the 2nd January, the notice period will end on the 2nd February not the 1st February following.

Clearly the other important issue that arose in this case is determining the correct final pay. It makes practical sense that when an employee has worked as usual in the day that notice is handed to him that then being paid for say one month notice must start the following day, not the same day that notice was given to the employee (otherwise the employee has lost a day's pay).

Employers therefore need to be careful and ensure that the correct notice period and pay is given when terminating the employment of any employee, as failure to do so would result in a risk of a breach of contract claim for the correct notice pay, together with possible confusion over the deadline for any claim to be made to the Employment Tribunal. 

If you have any questions on the issues raised in this article please do not hesitate to contact us.           
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