Horwood v Lincolnshire County Council (Jurisdictional Points : Claim in time and effective date of termination) [2012] UKEAT 0463_11_0304

EAT
Horwood v Lincolnshire County Council (Jurisdictional Points : Claim in time and effective date of termination)
[2012] UKEAT 0463_11_0304 · 2012-04-03
[1]In a judgment promulgated with reasons on 10 March 2011, the Leicester Employment Tribunal held, at a Pre-Hearing Review, that the Claimant’s claims for constructive unfair dismissal and unlawful deduction of wages had been presented out of time and that the Tribunal had no jurisdiction to determine them.[2]The question raised in the Claimant’s appeal is essentially this: when was the effective date of termination of her employment in circumstances where she resigned on one date, with immediate effect, but her employer subsequently said that her resignation would be taken as commencing on a later date, and the Claimant then proceeded on the basis that her employment had ended on that later date.[3]The Employment Judge, sitting alone, decided that it was the earlier date, which meant that her ET1 had been lodged one day out of time. The Claimant contends that he erred in so deciding. Alternatively she contends that, if her ET1 was lodged one day late, the Employment Judge should have held that it was not reasonably practicable for her to have lodged it within time because she had been misled by her employer; and that the Tribunal therefore had jurisdiction to determine her claim.[4]Before me the Claimant was represented by Mr Capek and the Respondent was represented by Mr Pallo, both of whom also appeared below. The facts[5]By agreement of the parties, the Employment Judge heard no oral evidence, but read the witness statements from the Claimant and from Moira Potter, Head of Older People’s Services at the Respondent Council. He also had an agreed bundle of documents and detailed written submissions from the representatives on both sides.[6]The Claimant, Denise Horwood, was employed as a Practice Manager in the Respondent’s Older People’s Services Team, based at Stamford, having worked for the Respondent since May 1985. A complaint from a colleague about the Claimant’s conduct in various respects led to a disciplinary hearing on 29 September 2009. Some of the allegations were found proved and the sanctions imposed were a final written warning and relegation to a lower tier role with a lower salary, which meant that the Claimant would no longer be based in the Stamford Office. She was told that Moira Potter would write to her about her new working arrangements.[7]The Claimant appealed against these findings, alleging that there had been serious defects in the disciplinary procedure adopted and in the investigation process, and that the sanction imposed was too severe. On 12 January 2010 her appeal was dismissed. The Claimant was informed that she would be demoted to a social work post and be based in future at the Boston Office.[8]The Claimant considered that the procedural defects in the disciplinary process together with her enforced demotion amounted to a fundamental breach of contract by her employer, and that her only course of action was to resign and bring a claim of constructive unfair dismissal.[9]Shortly after her appeal was dismissed she sought advice and assistance from Mr Capek. On 27 January 2010, in a letter addressed to Tony McArdle, the Respondent’s Chief Executive, which was drafted on her behalf by Mr Capek, the Claimant referred to the background, set out her allegations of fundamental breach and then said as follows:
“In the circumstances, I am resigning from the employment of LCC with immediate effect, as I am not prepared to ‘waive’ the Council’s fundamental breaches of contract towards me. In these circumstances, there is no requirement on me to work any ‘notice period’ and I do not intend to do so. I need only add that I intend in due course to submit a claim of ‘constructive unfair dismissal’ to the Leicester Employment Tribunal. Accompanying this will be a claim for ‘breach of contract on termination of employment’ to reclaim the shortfall in my remuneration between my pay as a ‘practice manager’ and my pay as a ‘social worker’ for the period from 30.9.09 up to the date of this letter.”
[10]The Claimant sent this letter to Mr McArdle on 28 January, by Special Delivery. Two copies of this letter were also sent by Special Delivery, on the same date, to Carole Edwards, Practice Manager at Boston, and to Ian Anderson, Executive Director of Adult Social Care at Lincoln, each of whom worked in a different location and in a different location from the Chief Executive.[11]On 29 January, which was a Friday, the Claimant’s letter to Carole Edwards was opened by a member of administrative staff at the Boston Area Office and was date-stamped 29 January 2010. It is agreed that the letter would have been opened and stamped by an employee of Mouchel, the business services company that employs all the staff engaged in carrying out the Respondent’s administrative functions.[12]Moira Potter’s evidence was that Carole Edwards told her that she did not read the Claimant’s letter until Monday 1 February. Although the letter was date-stamped 29 January it lay in Mrs Edwards’ in-tray until she saw it after the weekend. Mrs Edwards emailed Mrs Potter on 1 February, enclosing a scanned copy of the Claimant’s letter and asking her to deal with it.[13]There was no evidence as to whether the letter was read before Monday 1 February by either of the other two addressees. There was no evidence that the letter to Mr Anderson had arrived, or was opened and date stamped. However, Mrs Potter discovered that the letter to the Chief Executive was opened and date-stamped in his department on 29 January and Mr Capek accepted that that was the position. Mrs Potter stated:
“I am therefore unable to say with certainty whether any of the letters were actually read on 29 January 2010, but in the normal course of events I consider it likely that at least one of the other two letters would have been read by its intended recipient, or at least by someone in the relevant office on 29 January 2010.”
[14]Mrs Potter requested advice from Human Resources before drafting a response to the Claimant’s letter. On 2 February she wrote in response to the Claimant in the following terms:
“Dear Denise I am writing in response to your letter addressed to Tony McArdle dated 27 th January 2010. Your letter has been forwarded to me for response by Carole Edwards. I am sorry to hear that you wish to resign from your position with Lincolnshire County Council. This letter is to confirm that I accept your resignation from your Social Work post at the Boston Office. Your resignation will commence from the date of this letter, 2 nd February 2010. As you have outstanding annual leave, which equates to 9 days, I will ensure this is paid within your final salary.”
[15]Mrs Potter explained her reasons for writing in these terms as follows:
“There was no special significance in this date. I had not spoken to Denise directly nor indeed, to my knowledge, had anyone else spoken to Denise about the issue of her resignation. There had been the telephone messages between Denise and Carole but they did not involve the issue of Denise’s resignation. My decision therefore to nominate this date was nothing to do with any conversation or any agreement that I had with Denise or anyone on her behalf to extend her employment. Upon reading the letter, I was able to deduce that Denise intended to resign as at the date the letter was received by LCC and there was no suggestion that there be any notice pay. 10. I did however take into consideration the fact I was dealing with this matter after the month end (January 2010) and therefore I decided it would be a better use of payroll resources to process at least some payment for the month of February 2010. I considered that it would be far more convenient, in common with most cases that LCC deal with, for the resignation to take effect, notionally, from the date I was able to write the letter and in doing so, as I say above I was not carrying out any agreement with Denise or giving effect to any discussions that had taken place. There had not been any discussions. … … Without recourse to Denise, I confirmed that her last day of employment for the purposes of the question being asked was 2 nd February 2010 and I asked Carole to telephone Denise immediately to inform her that she was not insured to drive. 11. Carole, I am aware, did telephone Denise on 3 rd February 2010 and as Denise had not yet received my letter, Carole read it out to her...”
[16]On the afternoon of 3 February Mrs Edwards telephoned the Claimant to inform her that, as she was no longer an employee, she was no longer permitted to use her lease car. The Claimant had not yet received Mrs Potter’s letter, receiving it on 4 February, but Mrs Edwards read it out to her on the telephone and subsequently emailed Mrs Potter to say “… she understands that she no longer works for ‘LCC’ from 2/2/10.”[17]On receipt of Mrs Potter’s letter the Claimant stated that she assumed, because she regarded it as ambiguous, that her effective date of termination was now either 1 February (if it meant that 2 February was the first day she was no longer employed) or 2 February (if it meant that 2 February was her last day of employment).[18]The Claimant then received a letter dated 3 February 2010 from Finola Middleton of the Respondent’s Pensions Section concerning her pension options, which began, “I am writing to inform you of your options regarding your pension benefits on leaving your employment with LCC on 02.02.10 …” The Claimant understood from this that her effective date of termination (EDT) was 2 February rather than 1 February. She decided to take her pension with immediate effect, with the result that it started to be paid to her with effect from 3 February 2010. Her payslips for January and February showed that she was paid her salary up to and including 2 February 2010.[19]The Claimant’s evidence was that she just assumed 2 February was the effective date of termination of her contract and was content to proceed on that basis. Although she had lost four days of pension entitlement (from 30 January to 2 February inclusive) she had gained the corresponding 4 days net salary, which was in fact more beneficial to her. She therefore saw no reason to query or object to it.[20]In the weeks that followed the Claimant was being advised on her Tribunal claim by Mr Capek. In pre-issue correspondence with the Claimant, Mr Capek emailed a chronology to her on 20 April and informed her that both the precise date on which she had sent her letter of resignation and the effective date of termination (EDT) needed to be checked. In her response to him on 21 April the Claimant stated:
“Letter to LCC would have been 26 January 2010. And effective date of termination was 2 February 2010.”
In fact, that was incorrect because the Claimant later realised that she had not sent her letter until 28 January. Two days later she informed Mr Capek on the telephone that Mrs Potter had told her that her leaving date was 2 February and that her pension was going to be paid with effect from 3 February. On the evidence the Claimant did not query with Mr Capek whether her EDT might be a different date from 2 February. Nor did Mr Capek raise any query concerning this himself, despite being aware of the terms of her resignation letter.[21]The Claimant’s ET1, dated 28 April 2010, was sent by first class post on that day and arrived the following day. It was therefore presented to the Employment Tribunal on 29 April. In section 3 the Claimant stated that her employment had ended on 2 February 2010. The lengthy particulars of her claims for constructive unfair dismissal and for unlawful deductions from wages were all drafted on her behalf by Mr Capek.[22]In relation to constructive unfair dismissal he referred to the history, to the Claimant’s letter of resignation and to Mrs Potter’s letter of 2 February “indicating that the Claimant’s resignation would be effective from that date – therefore the Claimant’s EDT is 2/2/10”.[23]In relation to the unlawful deductions claim it was alleged that the reductions in the Claimant’s salary and employer pension contributions meant that the Respondent had failed to pay wages due to her between 30 September 2009 (the day after the disciplinary sanction of relegation was imposed) and 2 February 2010, that is, the day on which the Claimant stated that her employment had ended.[24]In the ET3, in addition to setting out a detailed response resisting the substantive claims, the Respondent alleged that the claim had been submitted out of time, requesting a Pre-Hearing Review (PHR) in order for that issue to be determined.[25]Essentially the Respondent’s case, as pleaded and as advanced at the PHR, was that the Claimant had unequivocally resigned without notice on 27 January 2010. Her letter of resignation was received on 29 January. The Claimant was clearly accepting the alleged fundamental breach of contract as being sufficient to permit her to resign without notice pursuant to section 95(1)(c) of the Employment Rights Act 1996 . There is no requirement, in statute or at common law, for an employer to accept an employee’s resignation. Notwithstanding Mrs Potter’s letter of 2 February 2010, which had no effect in law, the EDT had already occurred on 29 January, when the Claimant’s letter was opened and date-stamped by two of the addressees on behalf of the Respondent. The latest date for presentation of the ET1 was therefore 28 April and it was received on the 29 th . There was therefore no jurisdiction to determine the claim.[26]It appears that the PHR was initially fixed for 23 September 2010, but the hearing was adjourned on that occasion at the suggestion of the Employment Judge. Having read the papers and the parties’ written submissions he apparently directed both parties to undertake further legal research and referred to recent authorities on the effective date of termination. It was agreed that a fresh PHR would take place on 21 January 2011 and on that date the Employment Judge considered and determined the issue.[27]In his reasoned judgment, after briefly summarising the facts, the Employment Judge referred to the provisions of section 97(1) and section 111 of the Employment Rights Act 1996 . At paragraph 10 he identified the issues as being:
“10.1 When was the effective date of termination? 10.2 Was the date varied and if so what was the new date?”
[28]The Employment Judge referred to having taken into account a number of authorities, which he listed at paragraph 11. In relation to the first issue he found as follows:
“12. The first issue is to identify the effective date of termination. It is trite law that the effective date of termination does not occur until there has been communication of dismissal or, in a case of constructive dismissal, communication of the employee’s resignation. It is common ground that this occurred on 29 January 2010. Mr Capek seeks to argue that there is no evidence that any of the addressees actually read the letter on 29 January but I am satisfied that there is nothing of substance in that argument. There is no requirement that the actual addressee reads the letter. So long as someone from the respondent’s organisation does so, then communication is effected. The letter was read by at least one employee of the respondent on 29 January 2010 as it was opened and dated-stamped that day. 13. I am therefore satisfied that communication of resignation was effected on 29 January 2010. As the resignation was without notice, and pursuant to S97(1)(b) ERA 1966, the effective date of termination was 29 January 2010.”
[29]In relation to the second issue, referring to the decision of the Employment Appeal Tribunal in Wedgewood v. Minstergate Hull Ltd (UKEAT/0137/10/DA) the Employment

Judge said as follows at paragraphs 16 – 18:

“16. It is clear therefore that as a matter of law the effective date of termination can be altered provided there is agreement to do so. In this case there were no discussions between the claimant and Mrs Potter over the relevant period and therefore there could not have been any agreement on the effective date of termination or anything else for that matter. In the case law cited to me, where there has been a variation of the effective date of termination there is always some form or agreement between the parties. There was no agreement whatsoever in this case. 17. I am therefore satisfied that the effective date of termination remained 29 January 2010. There was no variation of the effective date of termination and Mrs Potter’s letter was not capable of doing so. In a sense the letter is an unnecessary distraction. If Mrs Potter had for example written to say that the effective date of termination was now earlier, it would not thereby have been brought forward. Mrs Horwood clearly believed that the effective date of termination was 29 January 2010. There is nothing to suggest that she was misled. 18. The reality is that the state of affairs arises as a result of a misunderstanding between Mrs Horwood and her legal adviser. It is clear from Mr Capek’s statement that there was some misunderstanding between him and his client. Mr Capek appears to have initially proceeded on the basis that the effective date of termination was 29 January. He was then contacted by the claimant to say that Mrs Potter had written to her to say that her termination date was 2 February but did not check the point. When he drafted the claim form he therefore put down 2 February 2010 as the date of dismissal. He was under the impression (wrongly as it turned out) that the deadline for submission was 1 May 2010 and thus sent the claim form by post on or about 28 April 2010 assuming that the claim would be received comfortably in time.”
[30]The Judge therefore concluded that the claim had been presented outside the time limit required by section 111.[31]He then turned to consider whether the Claimant had shown that it was not reasonably practicable for her claim to have been presented in time. On this issue he found as follows:
“19. … this was a case where it was clearly reasonably practicable for the claim to have been presented in time. Had it not been for the misunderstanding between the claimant and her adviser it would have been received in time. There is nothing to suggest that any impediment existed preventing either the claimant or Mr Capek from submitting the claim sooner. The tragedy is of course that if instead of posting the claim form on 28 April 2010 the ET1 had been faxed or e-mailed (which is very common these days) it would have been in time. 20. The present circumstances arise, in my judgment, as a result of a misunderstanding between the claimant and her adviser and in particular the failure to check the circumstances regarding Mrs Potter’s letter.”
[32]The Employment Judge concluded that both the claims had been presented out of time and they were therefore both dismissed. He did not, however, address the Claimant’s unlawful deductions claim specifically, or give any reasons for finding that that claim had also been presented out of time. That omission is strange because the Employment Judge’s failure to deal with this matter, in his oral ruling on the day of the hearing, caused Mr Capek to write to him, on 24 January 2011, asking him to deal with his arguments on this point specifically in his written reasons. The Employment Judge did not do so. Mr Pallo accepts that the Judge did not deal with this specifically, but he submits that the Employment Appeal Tribunal can now correct this error, depending on the finding in relation to the claim for constructive unfair dismissal.[33]The Claimant then submitted a detailed application for a review of the Employment Tribunal’s decision, in the interests of justice. This was refused on 11 April 2011, the Employment Judge stating that there appeared to be no reasonable prospect of the decision being varied or revoked. The appeal[34]The Claimant has appealed against both the substantive decision (grounds 1 – 5) and the refusal to review (grounds 6 – 15), but the issues raised are common to both appeals. Further, whilst there are a number of different grounds being advanced their focus is really a narrow one. It is submitted that the Employment Judge was wrong to conclude that the EDT was 29 January rather than 2 February. Alternatively, in the unusual circumstances of this case, it is said that the Claimant should have been allowed the benefit of the “not reasonably practicable” extension of time provision under section 111(2)(b).[35]By section 111(2) of the 1996 Act 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, or (b) within such further period as the Tribunal considers reasonable in a case where it was satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”[36]There are essentially four issues arising from the Claimant’s grounds of appeal, as follows:(a) What was the effective date of termination (EDT) of her employment?(b) Was the EDT varied, by agreement or otherwise?(c) Should the Employment Judge have found on the evidence that he was satisfied that it was not reasonably practicable for the Claimant’s claim to be presented before 28 April 2010?(d) Does the Claimant’s unlawful deductions claim survive, so as to require a reasoned determination? I consider these issues in turn. 1. What was the Effective Date of Termination ?[37]So far as is relevant section 97(1) of the ERA provides:
“(1) … in this Part ‘the effective date of termination’- (a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which notice expires, (b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect …”
[38]It has now been emphasised in a number of appellate decisions that the expression “effective date of termination” (EDT) is not a term of contract law, but a statutory construct specifically defined for the purposes of a legislative scheme of employment rights based on a personal contract. It is designed to hold the balance between employer and employee and conventional principles of contract law should not come into play in its interpretation. As the Supreme Court confirmed recently, in Gisda Cyf v. Barratt [2010] UKSC 41 , “The effective date of the termination of employment is a term of art that has been used in successive enactments to signify the date on which an employee is to be taken as having been dismissed.” (paragraph 5) and, “The construction and application of [section 97] must be guided principally by the underlying purpose of the statute, viz the protection of the employee’s rights.” (paragraph 41)[39]That case and others before it have considered section 97 in the context of an employer who dismisses an employee without notice. The question to be determined in those cases, for the purposes of the time limit for lodging an unfair dismissal claim, has been whether the termination of employment took effect on the date of the employer’s decision to terminate, on the date when the letter was sent, on the date when the letter was delivered, or was read or, if not read, when the employee had had a reasonable opportunity of learning of the contents of the letter.[40]In Gisda Cyf the Supreme Court upheld, as firmly anchored to the overall objective of the legislation, the well established rule that an employee is entitled either to be informed, or at least to have a reasonable chance of finding out that he has been dismissed before time begins to run against him.[41]The same reasoning has been applied in relation to the need for an employee to communicate to his employer his decision to resign and claim constructive unfair dismissal. As the EAT pointed out in Edwards v. Surrey Police [1999] IRLR 456, employers need to know where they stand when an employee leaves. It is therefore clear, as a matter of general principle, “…that before a contract of employment can be terminated there must have been communication by words, or by conduct, such as to inform the other party to the contract that it is indeed at an end. … unless there has been proper communication from the employee of the fact that they are regarding themselves as no longer employed, by words or conduct, their employment relationship has not terminated.”[42]However, the concerns expressed in the authorities as to the need for employees to know that they have been dismissed before they can be expected to take action, given that the purpose of the legislation is to protect employees’ rights, do not arise when the decision to leave is that of the employee.[43]This has led to the EAT adopting a different approach to the question of an employee’s communication of that decision and the EDT. In the case of George v. Luton Borough Council (EAT/0311/03/1609 (unreported)), the claimant/employee wrote a letter dated 30 July to a named manager of her employer, resigning with effect from 31 July. The letter was received by the Council on 1 August, when it was opened and date-stamped. The addressee was not there on 1 August so the letter was passed to a personal adviser, who acknowledged it on 2 August and accepted the resignation. The claimant, alleging unfair constructive dismissal, issued her ET1 on 1 November. The Employment Tribunal held that the claim was out of time.[44]Upholding the Tribunal’s decision, the EAT held that, “10 … it is important to bear in mind when considering issues of constructive dismissal, a claim to have been constructively dismissed, that it is simply an example of an ordinary right in contract entitling a party to treat a contract as being terminated on the basis of a repudiatory breach by the other contracting party. The right to treat the contract as so terminated is something that must of course be communicated to the other party. …… We are quite satisfied, as was the Employment Tribunal, that the letter was such an acceptance of repudiation. Is it sufficient that the letter should be received and opened or is more required in the sense that a person in authority must be proved to have actually seen and read the letter? Bearing in mind that, as it seems to us, when determining a contract, notice is required to be given not to a named individual but to the other contracting party, it seems to us that the communication is made when the letter is received, or if we are wrong about that, when the letter is opened.”[45]Recognising the distinction between this case and cases where an employer terminates the contract of employment, in which case an employee should have the termination communicated to him personally, the Employment Appeal Tribunal went on to explain the reason for this difference of approach as follows:
“14 ……that does not necessarily apply in a case where an employee is giving notice to a large organisation such as Luton Council, and where he has to do no more than communicate to the Council, not necessarily to a particular individual, that he has treated his contract of employment as having been determined. It seems to us that the receipt of the letter by the Council, as evidenced by the fact that it was opened and date-stamped on 1 August, is a sufficient communication to the Council. We think there would be a great deal of mischief if it could be argued in cases where notice was required to be given by a particular date that, although notice was received by the organisation in question, for various administrative reasons the letter did not get to the appropriate person for consideration until some time after the date of its actual receipt and opening. This is not a case of a letter that is simply lying in a postbox over a weekend, this is a letter that was clearly opened, date-stamped and passed on for someone to deal with. We know not in fact whether it reached [the addressee] on 2 or 1 August, but are satisfied that the communication was effective on 1 August when the letter was received and opened.”
[46]The same reasoning was applied by the EAT in the case of Potter and Others v. RJ Temple Plc (in Liquidation) (2003) UKEAT/0478/03/LA. In that case the EDT of employment of an employee who sent a letter notifying his immediate resignation by fax was held to be the date upon which the fax was received by the employer. The fax was sent at 20.21 on 13 September 2002 to the employer’s head office and there was no evidence that anyone at head office had read the letter on that date.[47]Agreeing with the reasoning in George and considering that it reflected the intention and purpose of the 1996 Act, the EAT held as follows:
“40 If the effective date of termination is the date on which the fax was received in the Company’s office, a sensible result is achieved. This is the date on which Mr Potter, having made his election, communicated it in the clearest terms. As the Tribunal found, he intended to resign with effect from that date, and no longer considered himself bound from that date. He had a fax confirmation sheet to tell him when his communication was received. 41 If receipt of the fax is insufficient to fix the date of termination, Mr Potter could not with certainty know what date it was. It might have been as late as 16 th September, when the office opened on Monday. But if an authorised member of staff read it on the Friday, Saturday or Sunday, the date would be earlier. It is certainly not out of the question for a senior member of management to be in the office late, or go in the office at the weekend. So Mr Potter could not sensibly rely in any event on the date being later than 13 th September. 42 Further if, as Mr O’Dair submits, the effective date of termination depends on receipt of a fax at a time when the office is open, there will be room in other cases for debate and doubt. Many offices have no fixed opening hours.”
[48]I agree with the reasoning in both these decisions, which I regard as compelling. It follows that I do not accept the submissions of Mr Capek that, notwithstanding the Claimant’s letter of 27 January, the EDT was in fact set by the Respondent in the letter of 2 February (ground 1); or that the earliest date for the EDT was 1 February, because this was apparently the first date on which the Claimant’s letter of resignation was actually read by any one of the three intended recipients (ground 3).[49]The Claimant’s letter of resignation, with immediate effect, was unequivocal in its terms. Once that letter was received at the offices of Mr McArdle and Mrs Edwards, and was opened and date-stamped by their administrative staff, the Claimant’s communication of her resignation was effective. Indeed, it is clear from the Claimant’s first witness statement that this was her own expectation, at least until 3 February, because at paragraph 5 she said this:
“I had certainly expected these letters to reach the locations at which these individuals were based the next day – ie on Friday 29.01.10. Assuming that at least one of the named individuals had read the letter on that date, I therefore thought that 29.01.10 would prove to be my ‘effective date of termination’ (EDT).”
[50]The fact that the letter may not have been read by any of its intended recipients on 29 January does not prevent that date from being the EDT, for the reasons explained in both George and Potter . As Mr Pallo pointed out, if communication to the Respondent was effected only on the date when the letters were read by their addressees, a number of conceptual difficulties would arise. What would happen, for example, if the Chief Executive had not himself read the letter on 29 January, but his immediate subordinate had? What if all three recipients of the letter had left their employment, or taken extended leave, or gone on sabbatical on 29 January, so that none of them ever read the letter at any time? For good reason, not least the interests of the employee herself, the law does not allow the effective date of communication of her resignation to be dependent upon such uncertainties.[51]Nor does it matter, in my view, that the administrative staff who opened the letters were not themselves directly employed by the Respondent. Clearly, as employees of the company contracted to provide business and administration services to the Respondent, they were acting at all times as agents of the Respondent and, as such, were authorised to open and date-stamp all letters arriving for the attention of the Respondent’s employees.[52]In the circumstances the natural consequence of the Claimant’s communication being effected on 29 January is that Mrs Potter could not subsequently set the EDT as 2 February. Her decision, apparently for payroll and administrative purposes, to inform the Claimant that her resignation would commence from a later date could not alter the EDT, which had already occurred. Nor could the fact that the Claimant continued to receive salary until 2 February and her pension from 3 February.[53]For these reasons, in my judgment, the Employment Judge was right to conclude that the EDT in this case was 29 January 2010. 2. Was the EDT subsequently varied ?[54]Mr Capek’s essential submission is that, even if the EDT was originally 29 January, that date was subsequently varied by agreement of the parties. Referring to the decisions of the EAT in Palfrey v Transco PLC [2004] IRLR 916 and Wedgewood v Minstergate Hull Ltd UKEAT/0137/10/DA he submits that these decisions are authority for the proposition that an EDT can be changed by agreement and that it was so changed on the evidence in this case. Submitting that the EAT should not adopt an “overly legalistic” analysis to this question he contends that, even if there was no express agreement between the parties, by the letter from Mrs Potter of 2 February the Respondent either unilaterally varied the EDT and the Claimant accepted that variation, or the Respondent made an offer to change the EDT, which offer was impliedly accepted by the Appellant.[55]It is important to understand the factual basis for the EAT’s decision, in Palfrey , that the EDT could be changed. The employer gave a lengthy period of notice of termination for redundancy to the employee, commencing on 25 February 2003, with the last day of his employment stated to be 31 May 2003. The proposal was that he should work out his full period of notice but he was also told that, if he wished to bring forward his date of termination of employment, then there could be an agreement instead to pay a cash sum instead of the notice period. Negotiations then followed and correspondence showed that the parties agreed that the employee’s final leaving date would in fact be 31 March 2003. The Claimant’s ET1 was not lodged within 3 months of that earlier date and he sought to argue that the EDT had remained 31 May.[56]Referring to the provision in section 97(1)(a) that, where a contract of employment is terminated by notice, the EDT means the date on which that notice expires, the EAT held that the employment tribunal had been right to hold on the evidence that the EDT was in this case the 31 March. That was not only the day on which the employee last worked, but it was the day after which any payment that was made was paid in lieu of notice, and that sum was received in full, together with the redundancy payment, on 15 April. This was not a case where the employee had remained in employment until the 31 May, but was just not required to work during that period. The Tribunal were right to conclude that, in effect, there had been an implied withdrawal of the original notice prescribing termination on 31 May and a substitution, by way of a fresh notice in subsequent correspondence, of a period terminating on 31 March. Alternatively there had been an agreed variation of the original notice.[57]At paragraph 12, Burton J giving the judgment of the EAT said as follows:
“There must be a real risk that if, in fact, what occurred here is not permissible, so as to vary or replace the original notice, that where there are consensual discussions between an employee and an employer during a notice period, which lead to an agreed date of termination, it might be capable of being suggested that that amounted to a consensual termination and that the original notice by the employer was not causative, but that the employment resulted from an agreement between the parties, such that there could be no claim for dismissal or unfair dismissal at the hands of an applicant. That is plainly a scenario which should not be permitted….”
[58]The EAT was referred, in that case, to the decision of the Court of Appeal in Fitzgerald v University of Kent at Canterbury [2004] EWCA Civ 143 , where, after the claimant’s employment had terminated on 2 March, it was agreed between the parties that the claimant should be treated as having accepted retirement as from 28 February. In his judgment, Sedley LJ described the EDT as “…a statutory construct which depends on what has happened between the parties over time and not on what they may agree to treat as having happened”. The parties were free to make binding agreements for pension or other purposes outside the statute, fixing dates that do not correspond with events. However an agreement, whereby subsequent to the EDT a date was arrived at consensually antedating the EDT, clearly fell within the description of a provision in an agreement which purports to limit the operation of section 111 of the 1996 Act and thus of section 97. In these circumstances the Court was not prepared to allow a situation where, after the EDT, the parties sought to rewrite what had happened. That case was decided on entirely different facts and was held to be of no assistance to Mr Palfrey.[59]The claimant employee in Wedgewood was given notice of termination for redundancy on 4 November 2008, to expire on 1 December. He worked for most of his notice period but, on 26 November, asked if he could leave early. The employer wrote a letter to him later that day, counter-signed by the claimant, confirming that he would be released on 26 November and would still be paid up to and including his notice period date of 1 December. The ET1 was submitted on 28 February 2009, which the tribunal held was out of time because the EDT was 26 November.[60]Allowing the claimant’s appeal the EAT held that the EDT had not altered as a result of the employer absolving the claimant from working his period of notice. Whilst, as shown by the facts of Palfrey , the EDT could be altered by the parties expressly agreeing to do so in certain circumstances, that had not occurred on the facts of this case because the employer’s letter of 26 November did not alter the EDT of 1 December.[61]In the present case Mr Capek realistically accepts that the evidence does not show there to have been any express agreement between the parties as to any change to the EDT. On the contrary, Mrs Potter made it clear that there was no discussion whatsoever with the Claimant about the EDT after 29 January, before she wrote to her giving the date of 2 February as the date she would take as the date of termination, for what were essentially payroll and administrative purposes. Mr Capek therefore resorts to a submission that, on analysis, there was either a unilateral variation by the employer, or an offer by the employer to vary the EDT, either of which was impliedly accepted by the Claimant.[62]However, none of the authorities to which he referred provides any support for such an analysis, in circumstances where the Claimant had already communicated her resignation, in unambiguous terms and with immediate effect, on 29 January. Indeed the decision in Fitzgerald indicates that, for good reason, it is not open to the parties to seek retrospectively to alter an EDT and to bypass the effects of section 97. A clear distinction is to be drawn between cases such as Palfrey , where the parties reach a clear agreement as to an earlier termination date during the notice period, and cases such as the present, where the employee herself resigns with immediate effect and effectively communicates that decision to her employer, whereupon the EDT is fixed and cannot retrospectively be altered.[63]On the evidence in this case the Claimant’s contract had come to an end on 29 January. Mrs Potter could not therefore unilaterally alter the termination date of a contract which had already ceased to exist. Further, the notion that on the facts of this case the correct legal analysis is that there was acceptance by silence or implied consent by the Claimant to her employer’s subsequent “offer” to reinstate the contract and vary the EDT is in my judgment entirely misconceived. Such an analysis has no place in the statutory regime governing the determination of an employee’s effective date of termination of employment, where the need for clarity and certainty is paramount, as the authorities make clear. This is not to adopt what Mr Capek criticises as an overly legalistic approach. Rather it reflects the sound public policy considerations underpinning the decisions in the cases to which I have referred, and the inescapable fact that on 29 January this Claimant’s contract came to an end following the communication of her resignation with immediate effect.[64]The Employment Judge was correct, in my view, to conclude that there was no subsequent variation of the EDT in this case. 3. Reasonable practicability[65]Mr Capek’s submission is that, even if the EDT was 29 January, the Claimant had acquired a mistaken, yet reasonable belief that the EDT was 2 February. This was because she was misled by her employer, as a result of Mrs Potter’s letter of 2 February, and the Respondent should not therefore be permitted to take advantage of the situation. The Employment Judge should have found that it was not reasonably practicable in these circumstances for her ET1 to be presented by 28 April and given her the benefits of the extension of time provisions in section 111(2)(b) and section 23(4) (wages deductions claim) of the 1996 Act.[66]I cannot accept this submission. Nor do I consider it helpful, in considering this point, to have regard to those cases dealing with letters terminating employment which are expressed in ambiguous terms, such as Chapman v Letherby and Christopher Ltd [1981] IRLR 440, and Octopus Jewellery v Stephenson UKEAT 0148/07 to which Mr Capek referred. The Claimant’s letter of resignation was unambiguous and unequivocal, and the letter from Mrs Potter was written for her own purposes and was of no effect so far as the EDT is concerned. The Claimant was well aware that her letters were likely to reach their destination by 29 January and on her own evidence, understood at first that that date would be her EDT.[67]On the evidence the Employment Judge was entitled to conclude as he did at paragraph 18 that the problem had arisen because of a misunderstanding between the Claimant and her legal adviser. Whilst both of them had initially proceeded on the basis that the EDT was 29 January, the point was not picked up when the Claimant contacted Mr Capek and referred to the later date, or when Mr Capek came to complete the ET1 on her behalf and send it to the Tribunal by post.[68]These were unfortunate events indeed but, as the Employment Judge found, there was no evidence to suggest that the Claimant was unable to present her claim before 28 April, save for the fact that both she and her adviser were operating under the erroneous assumption that the EDT was 2 February. In the event, had the ET1 been faxed or submitted online on that date it would have been lodged in time. The hurdle to surmount in this section is a high one and the Employment Judge was entitled to conclude on the evidence before him that it was reasonably practicable for the ET1 to have been lodged in time and that time should not therefore be extended. 4. Unlawful deductions claim[69]I can deal with this point very shortly in the circumstances, given my conclusions on the constructive unfair dismissal claim.[70]Mr Capek submits that, even if the EDT was 29 January, the Claimant continued to receive salary up to 2 February even though this four day period extended beyond the EDT. The time limit for this claim was therefore 1 May and the ET1 was within time. Alternatively, he submits that since the Claimant did not actually receive her wages for the period up to 2 February until 23 February, when the final shortfall alleged occurred, the final date for submitting the unlawful deductions claim was 22 May and her ET1 was well within time.[71]I do not accept either of these analyses. Since the EDT was and always remained 29 January, I accept Mr Pallo’s submission that the payments made to the Claimant by the Respondent, up to and including 2 February, constituted ex gratia payments by the Respondent and cannot form the basis of a contractual relationship between employer and employee in the circumstances. The unlawful deductions claim could not therefore survive and, although the Employment Judge gave no reasons specifically in respect of this point, his decision that this claim should also be dismissed was correct.[72]In his remaining grounds of appeal Mr Capek had complained of the Employment Judge’s erroneous failure to review his decision, making a number of procedural complaints and submitting that his review decision did not withstand the Meek test. Given my conclusion on the main points in this appeal, I do not consider that any of these criticisms disclose an error of law by the Employment Judge in arriving at what I find to be a correct and sufficiently reasoned decision on the evidence he heard. He was entitled to refuse the application for a review.[73]There was little factual dispute in this case, as demonstrated by the fact that no oral evidence was called and the parties agreed to proceed on the basis of the evidence contained in the witness statements. It appears that a statement initially submitted by Mr Capek was withdrawn before the PHR and that he did not give evidence himself at the hearing. It is correct that the Employment Judge seems to have had regard to that statement in paragraphs 18 and 22 of his judgment. However, the matters referred to in these paragraphs mirror both the contents of the Claimant’s first witness statement (at paragraphs 28-33) and the written submissions that were presented by Mr Capek on the Claimant’s behalf. The Employment Judge did not therefore take into account any matters which were not properly before him and this does not seem to me to give rise to any ground of appeal against his decision.[74]For all these reasons the Claimant’s appeals must be dismissed.