Wang v University Of Keele (Jurisdictional Points : Claim in time and effective date of termination) [2010] UKEAT 0223_10_0804

EAT
Wang v University Of Keele (Jurisdictional Points : Claim in time and effective date of termination)
[2010] UKEAT 0223_10_0804 · 2011-04-08
[1]This is an appeal from the judgment of the Employment Judge Cadney sitting alone on 5 October 2009. The written judgment, which was sent to the parties on 19 October 2009, identifies the location as Birmingham but the Appellant, Dr Wang, is adamant that the location was Stoke on Trent; the precise location is not material. The Employment Judge decided that Dr Wang's claim of an unfair dismissal from his position in the Institute of Science and Technology in Medicine of Keele University by the Respondent, the University of Keele, had been presented one day out of time and he dismissed the claim because, as he held, it was reasonably practicable for Dr Wang to have presented it in time.[2]Neither party attended the hearing. The Respondent, through its solicitors, lodged a written submission, which is at pages 42 to 53 of the hearing bundle. Its author, Mr Christopher Mordue, a partner in the firm of Pinsent Masons LLP asked that it stand as the Respondent’s submission in the case. Dr Wang also indicated that he would not attend and asked that his notice and grounds of appeal should stand as his submissions. I granted both applications and reserved judgment. The Facts[3]These lie in a small compass. Dr Wang was dismissed by a letter dated 3 November 2008. There is nothing to suggest that it was hand delivered and, obviously, having regard to the normal course of post, a hard copy cannot have reached Dr Wang until 4 November 2008, at the earliest. Paragraph 3 of the judgment records that at 4:40 pm on 3 November 2008 an e-mail was sent to Dr Wang and an electronic version of the letter was attached to it. Neither the letter nor the e-mail was included in the hearing bundle and so I asked to have sight of them.[4]The e-mail is from Paula Marsh of the Institute of Science and Technology in Medicine and after a salutation to Dr Wang it simply refers to an attached letter. The attached letter is from Professor Alicia El Haj, who was then Research Institute Director. An extract from the penultimate paragraph of the letter is quoted at paragraph 2 of the judgment (see page 2 of the hearing bundle). In order to set that passage in context I proposed to quote the whole of that penultimate paragraph, which reads as follows:
“Your performance in the four key areas outlined above has been considered very carefully. However, there is clear evidence, particularly in the important areas relating to grant acquisition and research to indicate that your performance has not improved and is not at the level that would be expected and required to confirm you in a research led academic post. Therefore, the decision has been taken to dismiss you from your post. You are entitled to 3 months notice. There is no requirement by the Institute of Science and Technology in Medicine that you should work throughout this notice period and therefore you are required to remain away from the site during this time. I would ask that you contact Professor David Smith in order to make arrangements to surrender your work keys and any other items that belong to the University. Should you need to come back onto site for any reason, please advise Professor Smith or me beforehand so that we can make the necessary arrangements. You have the right of appeal against this decision. If you wish to exercise this right you should put your appeal in writing, clearly outlining your reasons for appeal and it should be submitted to Mrs Jane Capewell, Head of Human Resources Department, Dorothy Hodgkin Building, Keele Campus within 20 days of the date of this letter.”
[5]Dr Wang gave evidence to the Employment Tribunal. He accepted that he had opened the e-mail and read the attached letter on 3 November 2008. The Employment Judge, at paragraph 3 of the judgment, records that this happened “shortly thereafter”, i.e. shortly after 4:40 pm. Dr Wang challenges the accuracy of this. He says that he did not open it until later in the evening and this is what he told the Employment Tribunal. In the absence of the parties it was impossible to resolve this, although from paragraph 8 of the judgment it looks as though Dr Wang was content to mount an argument based on the time of 4:40 pm. In any event, it is beyond dispute that the letter of dismissal had come to his attention before midnight on the 3 November 2008.[6]The judgment records that there was an internal appeal, which was dismissed. In a letter or letters written by the Respondent to the Benefits Agency it was said that Dr Wang would be employed up until 2 February 2009 and would be paid “up until that date” (see paragraph 5 of the judgment).[7]It is also noted by the Employment Judge that Dr Wang saw his union and received legal advice. This is another controversial aspect of the findings of fact. Dr Wang points out that he first went to see the union and later went to see a solicitor. The important point, however, is that he received legal advice as to the possibility of him bringing a claim for unfair dismissal and advice that any such claim would have to be brought within three months “of the date of dismissal” (see paragraph 4 of the judgment).[8]Dr Wang's claim was submitted to the Employment Tribunal on 2 May 2009 “in the belief that that was the last day of the three-month period for submission” (see paragraph 5 of the judgment). The submissions at the Employment Tribunal[9]The 2 February 2009, submitted the Respondent, was the last day of employment “upon the ordinary construction of the letter” and: “... in fact, as was known to the claimant, was the last day of his employment as it was the last day upon which he would be paid by the University. Irrespective of whether the letter is capable of being construed as giving 3 rd February 2009 as the expiry of the notice period Dr Wang's employment expressly came to an end on 2 February. If he is correct he might have a claim for one days unpaid notice pay, but his actual date of termination would not be altered.” (see paragraph 6 of the judgment)[10]On the construction of the letter, the Respondent submitted, as recorded at paragraph 7 of the judgment, that:
“… the notice given in writing and received in writing on the 3 November 2008 giving three months means that the notice expires on 2 February 2009.”
[11]On the alternative point the submission was:
“ … as set out above the claimant knew that as a matter of fact irrespective of the question of the appropriate calculation of the notice period that his employment was ending on 2 February 2009. As a matter of fact it did come to an end on 2 February 2009 as that was the last day upon which he was paid. Accordingly the respondent submits that for both reasons the effective date of termination of the claimant’s employment was 2 February 2009 and that accordingly any tribunal claim had to be submitted by 1 May 2009 in order to be in time. Therefore the claim is out of time.”
[12]The Appellant submitted to the Employment Tribunal that fractions of a day cannot be counted so that, whenever he opened the e-mail on the 3 November 2008 the notice period did not start to run until the next full day. At paragraph 8 of the judgment the Employment Judge summarises the rest of Dr Wang’s argument, which the Judge describes as mathematical and hard to follow and the significance of which to the calculation of notice periods he does not understand.[13]The Employment

Judge accepted the Respondent’s submissions in these terms at paragraph 9 on page 3 of the bundle:

“With the greatest respect to the subtleties of the mathematical basis of the claimant's claim, I have to apply the law as it currently stands and it appears to me the law as it stands is clear. I accept the respondents' submissions. Notice given and received in writing on 3 November giving three months' notice expires on 2 February. In addition, as was known to the claimant, that was the date upon which, as a matter of fact, his employment would come to an end. It follows the claim would have to be submitted by 1 May 2009 and, as it was not, it was submitted out of time. ”
So the Employment Judge accepted both the Respondent's arguments. He went on to find that it had been reasonably practicable for the Appellant to submit his claim in time. Having regard to the fact that Dr Wang had received legal advice as early as December 2008 and then submitted his claim form “on what he believed to be the last day”, the learned Judge took the view that it had been reasonably practicable to submit a claim form in time. The case at this Tribunal[14]His Honour Judge Peter Clark looked at this appeal under the “sift procedure”. He took the view that the Notice of Appeal disclosed no reasonable grounds for bringing the appeal and gave directions accordingly. Dr Wang, as he was entitled to do, asked for an oral hearing pursuant to rule 3(10). At that hearing His Honour Judge McMullen QC took a different view. He ordered the case to proceed to a full hearing, referring to the “corresponding date rule” as explained in the case of Joshi UKEAT/0235/07, BAILII: [2008] UKEAT 0235_07_3001 . He also made reference to the West v Kneels [1987] ICR 146 as potentially having application to the case. The submissions on appeal[15]A considerable part of the grounds of appeal is devoted to the correction of a variety of errors but on the first two pages Dr Wang refers to sections 97 and 111 of what he describes as the Employment Act 1996 but which obviously is a reference to the Employment Rights Act 1996 . He notes that section 97 makes provision in relation to the “effective date of termination” and that section 111 requires a complaint to be presented “before the end of the period of three months beginning with the effect to date of termination”. He then provides two hypothetical examples as to why mathematical logic dictates the notice could not start until 4 November 2008 and, therefore, would not expire until 3 February 2009 with the result that the period of three months within which he should have submitted his complaint did not end until the last moment of 3 May 2009. As a result, he submits that his originating application on 2 May 2009 was within the time limit.[16]Mr Mordue’s submissions are tailored to meet both the brief observations of HHJ McMullen and Dr Wang’s submission. I am grateful to him for the care and industry with which he has assembled both his submission and the bundle of authorities and I will give full attention to the detailed points that he makes in the discussion, which follows; I intend no disrespect by summarising them in the following way at this point in my judgment. Mr Mordue submits firstly that the “corresponding date rule” has no application to the instant case and, in so far as HHJ McMullen thought that it might be relevant he was wrong and he may have fallen into the error of thinking that he was applying the “corresponding date rule” in Joshi . Secondly he submits that the decision of the tribunal in West v Kneels does not apply to written notice and was directed to days not months and, therefore, has no application to the instant case. Thirdly he submits that the letter of dismissal should be construed as providing for the notice to commence on the date of the letter or on the date of receipt (here the same thing) and the approach of the Inner House of the Court of Session in Pacitti Jones v O’Brien [2005] IRLR 888 should be followed. The Law[17]Both parties correctly identified the relevant statutory provisions as being sections 97 and 111 of the Employment Rights Act 1996 . Section 97(1) reads as follows:
“subject to the following provisions of this section, in this part “the effective date of termination”- (a) in relation to an employees whose contract of employment was terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires.”
Section 111 (2)(a) reads as follows:
“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.”
Two linked questions are raised in this case. When is the effective date or termination? When does the period of three months beginning with effective date of termination end?[18]The recent decision of the Supreme Court in Gisda Cyf v Barratt [2010] UKSC 41 ; ICR 172 is, of course, about the effective date of termination in a summary dismissal and, as such, is not of direct relevance to the instant appeal, which concerns written notice.

(a) at paragraph 42:

“ 42. The fact that this rule has survived, indeed has been tacitly approved by, successive enactments merely reinforces the conclusion that it is consonant with the purpose of the various provisions relating to time limits. As Mummery LJ so pithily and appositely put it, the legislation is designed to allow an employee three months – not three months less a day or two – to make a complaint of unfair dismissal. When one considers that the decision to lodge such a complaint is one not to be taken lightly, it is entirely to be expected that the period should run from the time that the need to make such a decision is known to the employee. ”
Judgment in that case had not been delivered when the parties to the instant appeal lodged their written arguments. It seems to me that Dr Wang would want to say of the above passage that it emphasises that the employee’s entitlement to the full period provided for by section 111(2)(a) should be carefully safeguarded. Mr Mordue would want to highlight that, on the facts of the instant case, it can be said that Dr Wang knew from before midnight on 3 November 2008 that he was under notice and, therefore knew that when his notice expired he would need to make a decision as to whether to start proceedings or not. But, as it seems to me, the real issue here is does notice always run from the moment it is received?[19]West v Kneels [1987] ICR 146 illustrates that, in the context of notice, the law takes no account of fractions of a day and that notice may not always run from the moment it comes to the attention of the employee. It is, as Mr Mordue points out, however, a case about oral notice, arising in the context of whether or not the employee has accumulated sufficient service to invoke the unfair dismissal jurisdiction of the employment tribunal. On the facts of the case, that depended on whether oral notice given in the afternoon of a working day in these terms - “I am giving you a week’s notice from now” – took effect then or did not start to run until the following day. A division of this tribunal presided over by Popplewell J accepted the argument (148G):
“ … that where somebody is at work and has contracted to work for that day, any notice given on the day during which she works must be notice which does not include that day; the law disregards fractions of a day; that notice is intended to be seven clear days once an employee has commenced work, and that the day on which she commenced work is to be ignored.” and concluded that the notice did not start to run until the following day because if notice given part way through a working day is to count that notice must be less than the stipulated period of notice because the day on which it is given cannot be regarded as a “clear” day. Moreover, to disregard that day was consistent with good industrial practice, as evidenced by the then departmental advice to be found in the Department of Employment brochure, which read: “ Unless a contract states otherwise, notice can be given on any day. The notice period runs from the start of the day after the day on which notice was given. So if a week's notice is given on a Monday, the period of notice will begin on the Tuesday and expire at the end of the following Monday. ”
But, as Mr Mordue also points out, Popplewell J emphasised that the case decided nothing about written notices (see 149G).[20]Written notices will have to be in the form, and for the period, prescribed by the contract of employment in order to be lawful. But the contract may well be silent as to form and, in any event, both the rubric of the contract itself and of any written notice purported to be given pursuant to it may fall to be construed as to their true meaning and effect, although I have no doubt that such questions of construction should not be approached in too technical a fashion. Frequently, however, the contract may be silent as to when a period of notice is to be begin. There is some judicial support for the proposition that where the meaning and effect of a letter of dismissal is ambiguous, it should be construed to the advantage of the employer (i.e. the “contra proferentem” rule of construction applies). This was suggested in Chapman v Letheby & Christopher Ltd [1981] IRLR 440 by the then President, Browne-Wilkinson J, at paragraph16 on page 443 “Even if we are wrong in this view and the meaning of the letter is truly ambiguous, there is a principle of construction that words are interpreted most strongly against the person who uses them. We think this principle is peculiarly applicable to cases such as the present where an employer, by an ambiguous notice, may mislead the employee as to the effect of the document the responsibility for the wording of which lies entirely in the hands of the employer. It seems to us right that an employer who relies on a notice served by him as having a particular meaning should be required to demonstrate that it unambiguously has that meaning. If the employer can rely on ambiguities being resolved in his favour, the employee may be left in doubt as to where he stands and may lose his statutory rights. Applying this principle of construction to the letter of 27 February, if it is doubtful whether it was a letter of summary dismissal or notice of future termination it should be construed against the originator of the notice and in the way most favourable to the employee, ie in this case as a notice terminating the employment on 10.5.80.” A year later in Stapp v The Shaftesbury Society [1982] IRLR 326 the Court of Appeal approved the above, Stephenson LJ saying at paragraph 16 on page 328:
“I entirely agree with Mr Widdup's submission that, perhaps even more than a notice to quit premises, a notice to terminate employment must be construed strictly against the person who gives it, the employer, and if there is any ambiguity it must be resolved in favour of the person who receives it, the employee. Such a case was the case of Chapman v Letheby & Christopher Ltd, reported in [ 1981] IRLR 440 ; and I entirely agree with what Mr Justice Browne-Wilkinson there said about ambiguity in such a document as this.”
Whilst it may be that this passage is obiter dictum (the letter was not ambiguous in Stapp ), the approach of Browne Wilkinson J has persistently been referred to without demur. When Simon Browne LJ said in Drage v Governors of Greenford High School [2000] IRLR 314 at paragraph 32 on page 313:
“Although the terms of the initial letter are likely to be of great importance when seeking to answer that question, they will not necessarily be determinative. The position is not identical to that arising in a case like Chapman v Letheby & Christopher Limited [ 1981] IRLR 440 where there was no provision for an internal appeal and where the question was whether the employee was being paid wages in lieu of notice or being dismissed with effect from a future date. In a case like the present, the contractual position is no less important than the terms of the initial letter; rather the effect of the initial letter must be considered in its contractual context. Similarly, in a case like the present, events subsequent to the initial letter may help determine its true effect.”
I regard him as indicating that, as a matter of construction the situation was contractually different to that in Chapman ; to my mind he is not doubting the soundness of the principle of construction and is only stating the fairly obvious, namely that there will be cases where that principle has no application because of the terms of the contract and the terms of the letter, as construed against the factual matrix. Moreover, it is significant that Mummery LJ endorses Chapman in these terms at paragraph 36 on page 318:
“The result is not inconsistent with any of the authorities cited to the court. It is loyal to the approach expounded by Browne-Wilkinson J in Chapman v Letheby & Christopher Ltd [ 1981] IRLR 440 at 442 that a letter relied on as notification of immediate termination of employment should be construed in the way that an ordinary, reasonable employee in his position would understand by the language of the letter and in the light of the facts known to him at the date of receipt.”
It is clear, at least by implication, that Mummery LJ regards the principle as sound. The most recent reference to Chapman that I can find is in the decision in this tribunal of HHJ Richardson in Teva (UK) Ltd v Heslip UKEAT/0008/09/JOJ, BAILII: [2009] UKEAT 0008_09_0907 , (see paragraphs 28 to 32, although the learned Judge disagreed that the letter was ambiguous on its construction). So it seems to me that the principle is well established.[21]The “effective date of termination” has to be identified in order to establish whether or not an originating application has been submitted within the time limited for doing so. It was settled a long time ago by Sir John Donaldson, sitting as president of the National Industrial Relations Court, in Hammond v Haigh Castle Ltd [1973] ICR 148, that the period of three months includes the effective date of termination itself.[22]At page 150H he says:
“In the light of the decision of the Court of Appeal in Trow v Ind Coope (West Midlands) Ltd [1967] 2 Q.B. 899 it is clear that the period beginning with the effective date of termination includes that date as part of the period ...”
[23]The case of Trow referred to by Sir John Donaldson was a decision concerning service of writs in a personal injury action. The Rules of the Supreme Court provided that a writ had to be served within the period of “12 months beginning with the date of its issue”. Harman and Salmon LJJ took the view that the phrase “beginning with” had a different meaning to the phrase “beginning from”. The former included the day of issue; the latter did not but was the equivalent of “after the day of issue”. It was to the latter that the long-standing rule of interpretation enunciated by Sir William Grant M.R. in Lester v Garland (1808) 15 Ves. Jun. 248, 33 ER 748 applied. Sir William Grant had said “ it would be more easy to maintain, that the day of an act done, or an event happening, ought in all cases to be excluded, than that it should in all cases be included .” The majority in Trow , whilst recognising that rule, decided that it could not apply where the expression “beginning with” was encountered. Lord Denning M.R. dissented in elegant terms and on the rational basis that there ought to be no distinction between the phrase “beginning with” and the phrase “beginning from” but the majority rule prevailed then and has continued to do so in subsequent years.[24]In Dodds v Walker [1981] 1 W.L.R. 1027, a case concerning the service of a counter notice in the context of a business tenancy under the Landlord and Tenant Act 1954 , the judge at first instance held that the counter notice had not been served in time because, although the date the notice was served should be excluded, the “corresponding date rule” applied for the purposes of calculating the applicable period of months.[25]This was affirmed by the Court of Appeal and the House of Lords. Lord Diplock said this at page 1029B-C:
“My Lords, reference to a “month” in a statute is to be understood as a calendar month. The Interpretation Act 1889 says so. It is also clear under a rule that has been consistently applied by the courts since Lester v Garland 1808 15 Ves.Jun. 248, that in calculating the period that has elapsed after the occurrence of the specified event such as the giving of a notice, the day on which the event occurs is excluded from the reckoning. It is equally well established, and is not disputed by counsel for the tenant, that when the relevant period is a month or specified number of months after the giving of the notice, the general rule is that the period ends upon the corresponding date in the appropriate subsequent month, i.e. the day of that month the bears the same number as the day of the earlier month on which the notice was given. The corresponding date rule is simple. It is easy of the application. Except in a small minority of cases, of which the instant case is not an example, all that the calculator has to do is to mark in his diary the corresponding date in the appropriate subsequent month. Because the number of days in five months of the year is less than in seven others the inevitable consequence of the corresponding date rule is that one month's notice given in a 30 day month is one day shorter than one month's notice given a 31 day month and is three days shorter if it is given in February. Corresponding variations in the length of notice required reckoned in days occur where the required notice is a plurality of months. This simple general rule which Cockburn CJ in Freeman v Read (1863) 4 B & S 174, 184 described as being “in accordance with common usage ... and with the sense of mankind,” works perfectly well without need for any modification so long as there is in the month in which the notice expires a day which bears the same number as the day of the month in which the notice was given. Such was the instant case and such will be every other case except for notices given on the 31st of a 31 day month and expiring on a 30 day month or in February, and notices expiring February and given on the 30th or the 29th (except in leap year) of any other month of the year. In these exceptional cases, the modification of the corresponding date rule that is called for is also well established: the period given by the notice ends up on the last day of the month in which the notice expires.”
[26]By combining the first and last sentences of the only other speech, that of Lord Russell of Killowen, it is possible to see how the rule worked in Dodds :
“My Lords, it is common ground that in this case the period of four months did not begin to run until the end of the date of the relevant service on September 30 - i.e. at midnight September 30/October 1. It is also common ground that ordinarily the calculation of the period of a calendar month or calendar months depends upon what has been conveniently referred to as the corresponding date. ... Accordingly I am of the opinion that the corresponding date principle is applicable in this case, that the four-month period expired at midnight January 30/31, and that the application made on January 31 was out of time and could not be entertained.”
[27]In this decade, firstly the Court of Appeal, in Zoan v Rouamba [2001] 1 WLR 1509 , and then the Inner House of the Court of Session, in the employment context, in Pacitti Jones v O'Brien , have had to consider these questions of interpretation, construction and computation.[28]Zoan concerned whether the negligent defendant in a road traffic accident was liable to pay the claimant’s cost of hiring an alternative vehicle; that depended on whether the hire agreements were regulated consumer credit agreements or were exempt from statutory control and that, in turn, depended on whether a clause in the agreements that the hire charges could be allowed to “ to remain outstanding until a date on or before 12 months after the date of this agreement ” complied with or was in breach of a statutory requirement that payments must be made “ within a period not exceeding 12 months beginning with the date of the agreement ”.[29]It will be gathered from that brief synopsis that much of the judgment of the court given by Chadwick LJ dealt with issues very far removed from the present problem. But in paragraphs 23 and 24 at page 1516E-1517B there is the following pertinent passage:
“23. Where, under some legislative provision, an act is required to be done within a fixed period of time “beginning with” or “from” a specified day it is a question of construction whether the specified day itself is to be included in, or excluded from, that period. Where the period within which the act is to be done is expressed to be a number of days, months or years from after a specified day, the courts have held, consistently since Young v. Higgon (1840) 6 M. & W. 49, that the specified day is excluded from the period; that is to say, that the period commences on the day after the specified day. Examples of such “exclusive” construction are found in Goldsmiths’ Co. v. West Metropolitan Railway Co. [1904] 1 KB 1 (“the powers of the company for the compulsory purchase of lands for the purpose of this Act shall cease after the expiration of three years from the passing of this Act”) and in In re Lympe Investments Ltd. [1972] 1 W.L.R. 523 (“the company has for three weeks thereafter neglected to pay”). In Stewart v. Chapman [1951] 2 K.B. 792 (“a person.... shall not be convicted unless.... within 14 days of the commission of the offence a summons for the offence was served on him”) Lord Goddard C.J. observed pp. 798-799, that it was well established that “whatever the expression used” the day from which the period of time was to be reckoned was to be excluded. 24. Where, however, the period within which the act is to be done is expressed to be a period beginning with the specified day, then it has been held, with equal consistency over the past 40 years or thereabouts, that the legislature (or the relevant rulemaking body, as the case may be) has shown a clear intention that the specified day must be included in the period. Examples of an “inclusive” construction are to be found in Hare v. Gocher [1962] 2 Q.B. 641 (“if within [the period of two months beginning with the commencement of this Act] the occupier of an existing site duly makes an application ... for a site license”) and in Trow v. Ind Coope (West Midlands) Ltd. [1967] 2 Q.B. 899 ("a writ ... is valid ... for 12 months beginning with the date of its issue”). As Salmon L.J. pointed out in Trow … at p. 923, the approach adopted in the Goldsmiths’ case ... and in Stewart v. Chapman … can have no application in the case where the period is expressed to begin on the specified date. He observed, at p. 924, that “I cannot ... accept that, if words have any meaning, “beginning with the date of its issue” can be construed to mean the same as “beginning with the day after the date of its issue.””
[30]Zoan was not concerned with the corresponding date rule but that rule was of importance for the Inner House of the Court of Session in the case of Pacitti Jones v. O'Brien [2005] IRLR 888 . There the issue was not when the notice expired; that was agreed between the parties. The question was whether the employees qualified to make a claim of unfair dismissal by having been continuously employed for one year. There is a statutory definition of a year in section 210 (2) of the Employment Rights Act 1996 , which reads:
“In any provision of this Act which refers to a period of continuous employment expressed in months or years - (a) a month means a calendar month, and (b) a year means a year of 12 calendar months.”
Before the Inner House the employer submitted that the corresponding date rule should be applied so that, if, as was agreed to be the case, the employee had started work on 8 April 2002, then 12 months expired on the corresponding date, namely 8 April 2003 and, therefore the employee was not qualified to make a claim because it was accepted that her employment had ended on 7 April 2003.[31]Lord Reed’s judgment, which was the judgment of the court, started at paragraph 8 by making the following, perhaps obvious, but, nevertheless important, observation that:
“The method by which time should be computed varies from one context to another. In order to determine the appropriate method in any particular circumstances, it is necessary to consider the terms of the relevant provision (whether of the statute, or some other documents such as a contract or will), in the context in which it has to be applied.”
[32]The judgment continues with quotation of the passages from Lord Diplock’s speech in Dodds set out above in paragraph 23 of this judgment and after quoting from the speech of Lord Russell (part of which is also set out at paragraph 23 above) Lord Reed says at paragraph 14 and 15:
“This approach cannot be applied if, by statute, the court is required to count the date on which the relevant event occurred (in the present case the employee starting work) as part of the relevant period. This point was recognised by the Employment Appeal Tribunal in Pruden v Cunard Ellerman Ltd . The case confirmed the requirement that a complaint of unfair dismissal must be presented “before the end of the period of three months beginning with the effective date of termination”
. In a judgment delivered by Wood J, the tribunal held that the three months expired on the date, three months later, corresponding to the day before the effective date of termination: for example, if the effective date of termination was 8 April, then the three-month period would expire on 7 July. Wood J declined to apply the dictum of Lord Diplock in Dodds v Walker , on the ground that that dictum concerned a situation where the date of the event in question was excluded from the calculation of the period which had elapsed, whereas in the case before the tribunal that day was included in the reckoning. In the present case, equally, we consider that Lord Diplock's dictum is inapplicable.”[33]In order to complete the picture, I need to consider both the case referred to in the above quotation, namely Pruden v. Cunard Ellerman Ltd [1993] IRLR 317 , and the judgment of HHJ McMullen in Joshi v. Manchester City Council UKEAT/0235/07/DA. Pruden was a time limit case; the industrial tribunal had ruled that the submission of the originating application was one day late. The employee had been dismissed with effect from 31 August and he submitted his complaint on 30 November. It was accepted by the industrial tribunal that the complaint of unfair dismissal should have been presented on 29 November. This decision was reversed by the Employment Appeal Tribunal, which decided that the last day for submitting the complaint was 30 November and, accordingly, the complaint had been submitted in time.[34]Wood J pithily summarised the law at paragraph 6 in these terms:
“Where time is specified to run from a particular date, the word “date” is the whole of the period of 24 hours from midnight to midnight, and the law takes no account of a fraction of a day unless special reasons require it; that is decided in the Court of Appeal in Trow v Ind Coope (West Midlands) Ltd ... . Where a complaint is required to be presented within a specified period – “from”, “after” or “of” - a particular date, that date is to be excluded from the calculation. That again is to be found in Trow v Ind Coope and in the Goldsmith Co v the West Metropolitan Railway Co ... , and Stewart v Chapman ... . However, where a complaint is required to be presented within a specified period beginning with “a particular date”, that date is to be included in the calculation, and that is Trow v Ind Coope supra.”
[35]Wood J’s division of this tribunal felt able to enunciate a test at paragraph 12 of the judgment. It reads:
“It seems to us, therefore, that the calculation starts with the identification of the relevant day and date upon which, in three months' time, time would run out. If one looks at it in that way the understanding, in our judgment, is far simpler. May we take examples? If the dismissal takes place and the EDT is on the 31st of a month during one of the seven months of the year, then the relevant date will be the 30th; one then goes forward three months and in 11 months out of the year there is no problem because there is a 30th. Likewise, if the EDT Is on the 30th of the month, then the relevant date is the 29th, and again there is no problem. The only anomaly to that simple approach is if the EDT is on 30 November or 1 December of any one year, because in those events one is looking for either 29 November 30 November, as the case maybe, and there will not be a 29th, save in leap year, or a 30th, in any event, in February. In either of those cases therefore it is quite simple that one takes the last day of the month of February. Now, that seems to us to be a relatively simple and straightforward way of doing it. You find your EDT, you take the day and date before and you go forward three months.”
So it seems clear that Wood J and his division of this tribunal felt that they had arrived at a simple solution but I have to confess to finding this simplification rather more complicated than what it seeks to replace. Wood J then considered and cited from some of the authorities set out above, ending with Dodds and the concluding paragraph of the judgment (paragraph 17) attempts an explanation of Dodds :
“Looking at the speech so far, it seems to us that the suggested approach which we have put forward leaves fewer problems than does the situation envisaged by Lord Diplock, and indeed, as we have indicated it is really only in the two days of the year that those difficulties could arise. It is also clear from the speech of Lord Russell of Killowen that the concentration is upon the relevant day before the calculation of time takes place and we adopt the reasoning of Lord Russell of Killowen more especially if he is looking at a point of time at the midnight between two days - namely in the present case it was between 30 August and 31 August – he then goes forward and says that the process must be served or delivered within three months from that point of time; and that point of time in the present case would have been 30 November.”
[36]HHJ McMullen considered many of these authorities nearly three years ago in Joshi . The case concerned Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 and required the learned Judge to consider whether or not he would follow the decision of a different division of this tribunal presided over by HHJ Birtles in the case of Singh t/a Rainbow International v Taylor UKEAT/0183/06, BAILII: [2006] UKEAT 0183_06_2706 . In that case HHJ Birtles had decided that Pacitti Jones was to be distinguished because it related to different statutory provisions and that the Regulation 15 extension meant 3 months and not 3 months less one day. HHJ McMullen preferred the approach of the authorities cited above in relation to the statutory formulation “ beginning with the day after the day on which it would otherwise have expired ” and declined to adopt the approach of this tribunal in Singh . HHJ McMullen encapsulated matters thus at paragraph 22:
“In short, the practitioner’s rule of thumb that the time for presentation of a claim is three months less a day after the relevant event means that when an extension of time is given pursuant to the 2002 Act and regulations, the time limit is six months less a day.”
[37]Mr Mordue submits that Joshi was not a case where the corresponding date rule was applied. He also points out that paragraph 19 of the judgment appears to contain an error. The date of 20 May cannot be correct. It is inconsistent with the agreed facts, the decision of the employment tribunal, which was upheld, and the reasoning of HHJ McMullen in upholding it. I agree that the date must be wrong. But in so far as Mr Mordue may be suggesting this is an error of substance (and I think it is equally possible that he is not), I cannot agree; it is a simple typographical error (20 May should read 21 May). Although HHJ McMullen discussed the corresponding date rule as part of the process of deciding whether to follow the previous decision of this tribunal in Singh , I do not think that for one moment he regarded himself as applying it in the Joshi case.[38]Before turning to consider the instant case, I think it appropriate to take stock. It seems to me the authorities referred to above establish the following: a) at least in summary dismissal cases, the period provided for by section 111(2)(a) should not be truncated by too rigorous an approach to determining the effective date of termination; b) in general the law takes no account of fractions of a day and in cases of oral notice of dismissal, unless the contract provides otherwise, a notice given during the working day cannot take effect until the following day; c) in cases of written notice of dismissal any ambiguity in the terms of the notice is to be resolved in favour of the recipient, and against the giver, of notice; d) in computing any period within which something must be done or by which something is to take effect a start date must be identified; e) where that start date is relative to the happening of an event, the fundamental question is likely to be whether the period starts on the day of the event or the day after the event; f) that will depend, in the context of a statutory provision, on the interpretation of the language in that provision and, in the context of a contract, lease, will or other legal document, on the construction of the language of the document; difficulties can arise if either the written material is completely silent on the point or there is no writing; g) where the statutory or contractual language means that the day of the event is to be included in the computation of the period, then time starts to run at the start of that day, irrespective as to the time of day that the event took place; the law takes no account of fractions of a day; h) where the statutory or contractual language means that the day of the event is not to be included, then time starts to run at the start of the following day, irrespective as to the time of day that the event took place because in this context also, the law takes no account of fractions of a day; i) mathematically fascinating though the “punctum temporis” at midnight might be, it need not preoccupy the legal practitioner because for most practical purposes the last second of one day and the first second of the next will not matter and it will be clear, in which day an event has occurred; j) where a period is counted in months, in the absence of further definition the application of the Interpretation Act will mean that these are calendar months; k) the corresponding date rule is a method of computing calendar months and whether it is characterised as a rule of law or a rule of practice (or, for that matter, a rule of thumb) it is enough of a rule of law to apply unless the contrary is indicated by the circumstances; l) it is said that it cannot apply where the start date is the day following the event but since it is no more than a convenient method of calculating when a period of calendar months ends, it is more appropriate to say that in such circumstances it would produce the wrong result, unless modified; this is because the corresponding date rule automatically adjusts the computation to take account of the fact that the day of the event does not count; if it does count then using the corresponding date rule and subtracting one day adjusts the computation to produce the correct result. Discussion and Conclusion[39]It has not been suggested that the contract of employment in the instant appeal makes any provision as to when notice of termination is to take effect. Nor has it been argued that the letter giving notice says anything as to when it was to take effect. The relevant part of the letter is quoted at paragraph 4 above. It gives a right of appeal “within 20 days of the date of this letter” but as to notice and what it is to happen during the period of notice it says only:
“Therefore, the decision has been taken to dismiss you from your post. You are entitled to 3 months notice. There is no requirement by the Institute of Science and Technology in Medicine that you should work throughout this notice period and therefore you are required to remain away from the site during this time. I would ask that you contact Professor David Smith in order to make arrangements to surrender your work keys and any other items that belong to the University. Should you need to come back onto site for any reason, please advise Professor Smith or me beforehand so that we can make the necessary arrangements.”
[40]Mr Mordue argues that the notice runs from the moment of receipt and includes that day; alternatively that the later correspondence between the Respondent and the Benefits Agency asserted that the last day of employment would be 2 February 2009 and because Dr Wang knew this, then that was the effective date of termination. The Employment Judge accepted both points but it seems to me that these are not separate points but different facets of the same point. If notice started running on 3 November 2008 then the last day of the 3 month notice period would be 2 February 2009 but if it did not start running until the following day then the last day would have been 3 February 2009. The argument set out at paragraph 6 of the judgment (see paragraph 9 above), which the Employment Judge seems to have accepted, erroneously conflates the remedy of damages for breach of contract with the effective date of termination. As section 97(1) tells us, the issue to be decided as to the effective date of termination in notice cases is “the date on which the notice expires.” In other words, this alternative second point merely begs the question raised by the first, when did the notice start to run? Even if it is expressed as being a peremptory alteration of the notice period, it cannot avail the Respondent because notice of three months, once given, could not be unilaterally shortened by one day without the assent of Dr Wang and there is no suggestion that he ever agreed to that truncation. Consequently, I do not regard the Employment Judge’s decision as sustainable on the so-called alternative point[41]Therefore, it seems to me the real issue here is Mr Mordue’s argument that, as a matter of law notice starts to run when the employee has the knowledge that s/he has been given notice of termination. Although Mr Mordue sought to distinguish West v Kneels on the basis that it was expressly stated not to apply to written notice, what his argument really comes to is that the reasoning in the case should not be equally applicable to both oral and written notice (or, for that matter, a combination of the two such as where the employee is told during the working day that he has been sent a letter giving him notice). I include within the concept of written notice modern methods of communication such as the SMS text message, internet based so-called instant messaging and email. Here the email was used as a medium to convey an electronic version of the letter of dismissal, which was attached but, no doubt, any of these methods could be used to convey the notice itself.[42]For my part, I cannot see why there is s significant distinction between oral, as opposed to written notice or between those and an oral communication that there is written notice, which is to follow and which, despite its later receipt, is to have immediate effect. To my mind notice can only have immediate effect if the contract provides that it should do so. The contract may stipulate, for example, that “all notices given pursuant to the terms of this agreement shall take effect immediately they are issued, irrespective as to the time or date of their receipt” or “any period of notice given pursuant to the terms of this agreement shall commence immediately the other party is in receipt of that notice”; the permutations may not be endless but contractual drafting can, no doubt, cover other contingencies.[43]If the parties have reached such an agreement, then that agreement will apply to identify when the notice starts to run. In the absence of express agreement, I would not want anything of what follows to be regarded as a basis for excluding the possibility that, as a matter of construction of the meaning of the wording of the agreement and the meaning of any other relevant document such as a notice letter, when taken in the context of the factual matrix (as suggested by Simon Browne LJ in Drage – see paragraph 20 above), the notice was to have immediate effect. On the other hand, in my judgment, unless there is an express term in the agreement dealing with when notice starts or the agreement that notice is to start immediately can be construed out of the wording of the contract and the wording of the letter set in the factual matrix of the case, the reasoning in West v Kneels should be applied to cases of written notice.[44]Firstly I can see no reason in principle for distinguishing between notice calculated in days and notice calculated in months; a day less is a day less, whether the computation is in days or months. Secondly, I can see no reason in principle for distinguishing between oral and written notice. The message is the same and the difference in medium of communication seems to me insignificant. Thirdly, I regard the reasoning that underpins the judgment in West v Kneels as sound. Entitlement to notice is entitlement to the period stipulated by the contract not that period less one day. That result can be avoided by discounting fractions of a day and moving to the next day. This seems to be a simple and workable solution.[45]I recognise that there is a distinction between summary dismissal and dismissal on notice. Whereas the effect of fixing the effective date of termination in a summary dismissal case on a date and/or at a time when the employee does not know that he or she has been dismissed has a direct detrimental impact on the length of the period within which a claim must be brought (per Mummery LJ as noted by Lord Kerr in Gisda Cyf ; see paragraph 20 above), I accept that in a notice case the impact is indirect (i.e. there is in common parlance a “knock on effect” from the notice period into the period beginning with the effective date of termination) and the detriment is less because the employee has had the whole of the notice period to think about whether to make a claim before the statutory limitation period begins.[46]Nevertheless what was stipulated for by the contract in the instant case has not been provided. In simple terms there has not been “clear” notice of the period contractually agreed; the notice has been one day less than that. In my judgment the law is not as stated by the learned Employment Judge (see paragraph 9 of his judgment quoted above at paragraph 13 of this judgment). The facts provide no basis for thinking Dr Wang’s contract expressly allowed for the period of notice to begin when it was received. Nor is there any basis for construing that as being the basis of the contractual agreement from either the words of the contract or the words of the letter giving notice. On the contrary, if the instruction not to come to work during the notice period suggests anything, it suggests that the period is to start the following day.[47]If it does not bear that construction then the letter is simply silent as to when notice is to begin and is to be construed in favour of the employee (see Chapman ). Either way notice did not start to run in this case until 4 November 2008 with the result that the effective date of termination was 3 February 2009. The corresponding date rule would alight on 3 May 2009 as the end of the statutory limitation period but it is well established that the effective date of termination is part of the period, so the period ended the previous day, namely 2 May 2009. Dr Wang submitted his claim on that day and, therefore, it was in time. The appeal will be allowed, the judgment below will be reversed and, it being a pure question of law, there will be substituted for it the finding that the claim was submitted in time and that the Employment Tribunal has jurisdiction to hear it.