Legal Updates

Employment Law – When is Notice Served? Dismissal - Employment Tribunal

In the case of Wang v University of Keele [2011], the claimant was dismissed by the respondent on the grounds of poor performance.  The respondent served three months’ notice, in accordance with the claimant’s contract of employment, which was sent in a letter dated 3 November 2008, attached to an e-mail on the afternoon of the same date.  It was accepted that the claimant had read the notice the same day, and on 2 February 2009, the claimant’s employment ceased and his pay was consequently stopped.

On 2 May 2009, the claimant presented his claim to the employment tribunal.  The employment tribunal dismissed the claim on the basis that the notice was served and received on 3 November and therefore expired on 2 February.  As such, the tribunal stated that the claim by the claimant should have been received by the tribunal by 1st May.  The claimant appealed to the EAT.

Decision

According to HHJ Hand sitting in the EAT, the question for consideration was whether “notice always run[s] from the moment it is received?"  After reviewing the main authorities on this question (most notably the case of West v Kneels [1987]), the EAT decided that:

• The law does not count parts of days in calculating notice and therefore only full days would count, unless an express term was contained in the appellant’s contract of employment stating that any notice served would have immediate effect;
• Applying the West case, the appellant’s notice period could not have started until 4 November 2008, and his effective date of termination would therefore be 3 February 2009;
• The three month limitation period to bring a claim in the employment tribunal would therefore run from 3 February 2009 and expire on 2 May 2009.

Accordingly, the appellant’s claim was presented within the limitation period and should proceed.

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© RT COOPERS, 2011. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.