The Employment Appeals Tribunal (EAT) has recently handed down judgment in Wedgewood v Minstergate Hull Ltd, whereby Silber J held that the effective date of termination is not altered simply because the employee is absolved of their duty to work.
In this case, the claimant wished to leave employment earlier than the date on which his notice period expired, that being 1st December 2008. The respondent wrote to the claimant on 26th November 2008 stating: "You can be released today and will still be paid up to and including your notice period date of Monday 1st December 2008".
The claim form was issued on 28th February 2009. At first instance, the Employment Tribunal found that the claim was out of time as the letter had brought the Effective Date of Termination (EDT) forward to 26th November 2008 and therefore the latest date by which the claim should have been submitted was 25th February 2009, three months after the EDT.
The EAT allowed the claimant's appeal. Although the 2004 case of Palfry v Transco means that the EDT can be altered by agreement, on the facts of this case, the letter dated 26th November 2008 did not constitute a variation, as it referred to "Your notice period date of 1st December 2008". Applying the earlier 1974 case of Lees v Greaves, the mere fact of the claimant not being required to work was insufficient to effect a variation.
Following this recent decision, advice to employers is that where an employee is not needed for work and the employer wishes to bring the notice period forward, this should be agreed with the employee and the revised EDT documented clearly.