Tribunal Report: Notice can vary - as can the time permitted for a claim

Identifying the date employment ends can help to avoid legal issues, advises Victoria Willson

Victoria Willson
Victoria Willson

The Employment Appeal Tribunal has handed down its latest judgment in the case of Willets v the Jennifer Trust for Spinal Muscular Atrophy. This case highlights for charities the importance of identifying the date when employment ends and confirms that notice can be varied.

The story

Dr Liz Willets was employed by the Jennifer Trust for Spinal Muscular Atrophy as director of support services. She resigned by letter, dated 28 June 2010, stating that her position was untenable for a number of reasons and she would leave on 30 July. She was asked to reconsider her decision. On 9 July she wrote a further letter confirming her intention to resign and gave a further four weeks' notice, saying that her employment would end on 6 August. This was acknowledged by the charity.

Willets spent her notice period on gardening leave and was paid up to 6 August. Her P45 also stated this date. Willets subsequently brought a claim for constructive unfair dismissal.

Birmingham Employment Tribunal found that her claim was out of time because it was lodged on 2 November - outside the three-month limitation period. The tribunal also held that Willets had failed to show that it was not reasonably practicable for her to present the claim within the time. Willets appealed because, she contended, her last day of employment was 6 August, and her claim was therefore in time.

Legal decisions

The Employment Appeal Tribunal agreed that the 28 June letter was a resignation letter and notice originally expired on 30 July. However, this was varied by agreement between the parties and extended to 6 August. In the alternative, the tribunal found that Willets withdrew her original notice and gave 'new' notice on 9 July, with the consent of the Jennifer Trust. Accordingly, the appeal tribunal concluded the first tribunal was wrong to find that the effective date of termination, or EDT, was 27 July. It allowed the appeal.

The appeal tribunal also commented that even if the EDT was 27 July, Willets held a genuine (albeit mistaken) belief that she had retracted her original resignation (supported by the Jennifer Trust's actions), and therefore she had shown it was not reasonably practicable to present her claim within time (this being the test for time limits in unfair dismissal cases to be extended). The claim was returned to the tribunal.

Lessons for charities

Notice of resignation cannot be unilaterally withdrawn (without the other party's consent) but, provided the notice period has not expired, it can be extended or shortened by agreement. This case demonstrates the importance of correctly identifying the EDT. This is essential for identifying whether claims have been brought in time and also to ensure that an employee is paid correctly.

Should parties ever wish to vary notice, then care should be taken to ensure clarity with any new arrangements: this is best done by confirming the position in writing. This case is also a reminder that, even if a claim is out of time, there is scope for a tribunal to extend time.

Victoria Willson is a partner at Levenes Employment, third sector specialists

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