Employee Resignation and The Effective Date of Termination

27 APRIL 2012

On the 3rd of April 2012 the Employment Appeal Tribunal considered the case of Horwood v Lincolnshire County Council UKEAT/0462/11, which concerned the jurisdiction of the Employment Tribunal to hear a constructive dismissal case where the complaint had been submitted one day out of time.

The Appellant Mrs Horwood had been employed as a Practice Manager with Lincolnshire County Council since 1985. In 2009, Mrs Horwood was the subject of a disciplinary procedure, and ultimately demoted.  Unhappy with the investigation and disciplinary process, she appealed. However, her appeal was dismissed on 12th of January 2010.

Due to her continued discontent Mrs Horwood wrote to the Respondent on 28th of January 2010 stating that she was resigning “with immediate effect”. This letter was read by the Respondent on the 29th of January 2010.

The Respondent subsequently wrote to Mrs Horwood informing her that her “…resignation will commence from the date of [the] letter, 2nd of February 2010” and that she would be paid up until that date, such that her employment was stated to come to an end on that date.

The Appellant submitted her complaint to the Employment Tribunal such that it arrived there on the 29th of April 2010. The issue of jurisdiction was considered at a pre-hearing review, and the Tribunal concluded that the claim had been brought one day outside of the three-month time limit, as the effective date of termination was the 29th of January 2010 when Mrs Horwood’s letter of resignation had been read. They also concluded that Mrs Horwood had failed to demonstrate that it had not been reasonably practicable to present her claim within the limitation period.

On appeal, the Employment Appeal Tribunal upheld the decision of the Employment Judge sitting on the pre-hearing review, finding that the concerns expressed in case law as to the need for employees to know that they had been dismissed before they could be expected to take action did not arise when the decision to leave was that of the employee.  Accordingly, in the instant case, once Mrs Horwood’s letter was received at the Council’s offices, and was opened and date-stamped by administrative staff on the 29th of January 2010, the communication of her resignation was effective and the effective date of termination established.

A clear distinction was to be drawn between cases where the parties reached a clear agreement as to an earlier termination date during the notice period, and cases such as Mrs Horwood’s where the employee resigned with immediate effect and effectively communicated that decision to her employer.  In such a case, the effective date of termination was fixed and could not be retrospectively altered by the parties by way of agreement or otherwise.

The Employment Appeal Tribunal also found no evidence to suggest that Mrs Horwood was unable to present her claim before the 28th of April 2010, save for the fact that both she and her adviser had been operating under the misapprehension that the effective date of termination was the 2nd of February 2010. The Employment Judge had therefore been entitled and right to conclude that it was reasonably practicable for the claim to have been lodged in time.

The appeal was duly dismissed.

Carys Williams