The effective date of termination does not change just because the employee has been allowed to leave early

Wedgewood v Minstergate Hull Ltd [2010] UKEAT 0137_10_1307

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• The act of absolving an employee from working his period of notice does not necessarily alter the effective date of termination (Lees v Greaves Limited 1974 ).
• An express agreement may however alter the effective date of termination (Palfrey v Transco plc [2004]).
• Lees v Greaves (Lees) Limited [1974 2 All ER 393 applied Palfrey v Transco plc [2004] IRLR 916 applied TBA Industrial Products Limited v Moreland [1982] IRLR 331 distinguished

In Wedgewood v Minstergate Hull Ltd an employee who had been given notice that his contract would expire, had been informed by his employer (the employee counter-signing the note) that, "you can be released today and will still be paid up to and including your notice period date Monday 1st December 2008".

The ET ruled that owing to the early departure of the claimant his (last minute) case was out of time. The EAT overturned this decision in deciding that despite the case of Palfry v Transco [2004] IRLR 916 whereby the effective date of termination (EDT) can be altered by agreement and after Lees v Greaves [1974] 2 All ER 393, where the claimant simply being allowed not to work did not amount to a variation, the effective date of termination does not change just because the employer has allowed the employee to leave earlier than the end date.

After redundancies had been anounced and the claimant was selected, given verbal notice of redundancy, time off for interviews and advised of his right of appeal the Claimant asked to be released earlier than the expiry of the notice period. This was allowed and he was paid up to the last official day of work.

The original effective date of termination was on 1 December 2008 but the Respondent argued that it had changed when the claimant was allowed to leave early, the DOT therefore falling on 26 November 2008 or 28 November 2008.

The appeal turned on whether whether the "effective date of termination" of a contract of employment may alter if after notice has been given but before the end of the notice period the employee is absolved from serving out the notice period.

Contrary to the Respondent, the Claimant argued that the "effective date of termination" cannot be altered just by absolving the employee from working his notice period and that his ET1 was therefore in time. The EAT agreed that the end of the statutory time limit of three months whereby the Employment Tribunal has jurisdiction to consider a claim of unfair dismissal under section 111(2) (b) of the Employment Rights Act 1996 had not yet been reached.

In the unfair dismissal case of Lees v Arthur Greaves (Lees) Limited [1974] 2 All ER 393 before the Court of Appeal decision an employee was dismissed with six months notice but prevailed upon to finish in exchange for two months pay in lieu of working the the Court of Appeal held that the effect of the agreement was simply to waive the duty to work and the contract remained in force until the end of the notice period.

In a similar case (where no authorities such as Tunnel Holdings v Wolf [1976] ICR 387 and CPS Recruitment Limited v Owen and the Secretary of State for Employment [1982] IRLR 54 were cited) the decision was that of TBA Industrial Products Limited v Morland [1982] IRLR 331 whereby there could be no variation of the effective date of termination given in the notice letter and that the date may only be altered by the employer withdrawing the original notice and giving a new one. An agreement for an employee to leave before the previously stipulated date of termination can not alter the effective date of termination.

In Palfry v Transco plc [2004] IRLR 916 a change of the effective date of termination was allowed by a simple variation but only because change in the effective date of termination was agreed.

Unlike in the Palfry case the employee here was simply released from working whilst as in Lee's case receiveing pay up to the original date of termination with the letter specifically referring to "your notice period date of Monday 1 December 2008" and thus reinforcing the original unchanged "effective date of termination".