All HR professionals know an ex-employee has three months from the effective date of termination in which to present a claim of unfair dismissal. That three month period begins with the effective date of termination of employment. However, when is the effective date of termination of employment when the employee has been given notice of termination?
Mr Wang was given three months notice of termination by an e-mail, which he received and read on 3 November 2008. The last day on which he was going to be paid was 2 February 2009. He appealed against his dismissal but was unsuccessful.
Mr Wang presented a claim of unfair dismissal, which was received by the Employment Tribunal on 2 May 2009, on, what he believed, was the last day for service.
The Employment Tribunal decided that as the three months notice had been given and received on 3 November 2008 it therefore expired on 2 February 2009. The three month deadline for presenting a claim therefore began on 2 February 2009 and because the three month period includes the effective date of termination, the time limit expired on 1 May 2009.
The Employment Appeal Tribunal decided that this was incorrect. The notice period (i.e. the three month notice period) did not start to run until the day after Mr Wang read the e-mail giving him notice. He read the e-mail on 3 November, so the three month notice period therefore began on 4 November and therefore expired on 3 February 2009. This meant that Mr Wang's claim was presented within the deadline, albeit on the very last day.
The only circumstances in which the notice would have begun on 3 November (i.e. the day when it was given and received) would have been if the employment contract had expressly provided that it should begin on that day or if such an agreement could be construed from the wording of the contract or any other relevant document, such as the notice letter.
The fact that the University chose to pay him only until 2 February was irrelevant.
It is remarkable how many employees, who want to present a claim to an Employment Tribunal, leave their application to the last day. This is risky, with no benefit and, as such, makes no sense.