Effective Date of Termination - Conditional Resignations

The Effective Date of Termination (EDT) of an employment contract is of critical importance when determining whether or not a claim of unfair dismissal is presented to the Employment Tribunal (ET) within the three-month time limit allowed.

In Heaven v Whitbread Group plc, the Employment Appeal Tribunal (EAT) has confirmed that the EDT is a statutory construct. It depends on what actually happened between the parties, not on what is agreed between them.

On 29 August 2009, Mr Heaven wrote to his employer saying he felt bitter about being forced to resign from his job and tendering his resignation, conditional on receiving an assurance that he would be paid a month’s salary in lieu of notice and would receive a ‘glowing reference for future use’. Whitbread Group plc replied, confirming its willingness to pay salary in lieu of notice and providing details of its policy on giving references. It had not yet acted upon Mr Heaven’s letter, however, as it could not accept a conditional letter of resignation. On 3 September, Mr Heaven sent an email resigning from his position, stating that this was effective from 29 August.

Mr Heaven subsequently brought a claim for constructive dismissal, but the ET held that his EDT was 29 August and it did not therefore have jurisdiction to hear his claim because it was presented out of time. Mr Heaven appealed, arguing that his EDT was in fact 3 September, which meant that the claim had been presented in time.

The EAT held that a contract of employment cannot be brought to an end by an ‘equivocal and conditional letter of resignation’. In this case, Mr Heaven confirmed his resignation on 3 September. In Fitzgerald v University of Kent, the Court of Appeal clarified that for the purposes of unfair dismissal, the EDT is determined according to statutory rules and depends on actual events. It cannot later be changed because the employer and employee agree that it should have been a different date. The ET was therefore wrong to find that Mr Heaven’s resignation could be backdated to 29 August, even though this was his stated wish at the time.

As Mr Heaven’s EDT was 3 September, the ET did have jurisdiction to hear the case as his claim was presented within the three-month time limit.