Changing The Effective Date Of termination was Permissible
Mr Harvey was employed as a solicitor by Parker Rhodes Hickmotts Solicitors (PRH) from 1 September 2009. On the afternoon of 28 July 2010, a managing partner of PRH met with Mr Harvey and told him that the firm was letting him go because of a lack of work. She handed him a letter that stated:
“It is with regret that we have to advise you that your present role in the firm will be redundant from the 31st August 2010. We do not require you to work all your notice and we would suggest that you come into work until the 9th August and we will pay you holiday and notice in lieu up to the 30th.”
Mr Harvey had a contractual notice period of four weeks. For him to have one year’s continuous service, and be entitled to bring an unfair dismissal claim, his employment would have to end no earlier than 31 August 2010.
The managing partner became concerned that the reference to 31 August in the letter may have the effect of continuing Mr Harvey’s employment past the unfair dismissal qualifying date. She sent him an amended letter, which he did not see until 2 August but was dated 28 July, and was in identical terms except that the date 28 August 2010 was substituted for 31 August so that it now read: “your present role in the firm will be redundant from the 28th August 2010”.
The question of the correct effective date of termination (EDT) arose. Mr Harvey said that the EDT was 31 August, while PRH said that it was 28 August (neither party argued that it was 30 August).
The Employment Tribunal Decision
The employment tribunal found that the EDT was 31 August 2010, so Mr Harvey had sufficient qualifying service to bring his complaint of unfair dismissal.
The Employment Appeal Tribunal (EAT) disagreed and found that Mr Harvey did not have one year’s service, with the EDT being 28 August. While the case law has established that an employer cannot unilaterally withdraw notice once given, in this case PRH did not seek to withdraw the original notice of dismissal so as to continue the employment. Instead, it wished to proceed with the dismissal, bringing forward the EDT. The EAT said that this is quite different and permissible, with the second letter constituting a new notice as opposed to a variation of the first notice.
Once notice of termination has been given, it cannot be withdrawn unilaterally, whether by the employer or the employee. The notice period can only be shortened or extended by mutual consent.
The effect on the EDT of the parties agreeing to shorter notice than that originally given by the employer has been the subject of conflicting case law. In general, the courts will be reluctant to treat the employer’s action as shortening the EDT, at least where that will be disadvantageous to the employee, unless the employer’s intention to do this is unambiguous. Any ambiguity in a letter or arising out of the circumstances in which an employer purports to vary the EDT will be construed in favour of the employee.
The EAT in this case observed that Harvey on Industrial Relations and Employment Law is correct in commenting that paradoxically it may be more difficult for an employer to bring forward the EDT consensually rather than by unilaterally serving a fresh notice, as the consensual approach is more likely to be viewed as relieving the employee of the obligation to work the notice period rather than bringing forward the EDT.
If employers wish to bring forward the EDT once notice has been given, this should be clearly stated in a letter to the employee. Finally, it is also important that notice is given and expires well in advance of the employee acquiring sufficient service to obtain unfair dismissal protection.
Case ref: Parker Rhodes Hickmotts Solicitors v Harvey
This article first appeared on Personnel Today
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