What is the Employee’s last date of employment?
Meredith Hurst Monday, April 16, 2012
There have been a number of cases on when notice takes effect, most recently with the case of Horwood v Lincolnshire County Council UKEAT/0462/11 and 0463/11 which relates to an employee handing in her notice.
The exact date the employment comes to an end is important for many reasons:
- In order to calculate the length of service to establish whether an employee has statutory rights for example redundancy pay or unfair dismissal.
- To calculate whether an employee has brought his or her claim to the Employment Tribunal in time. Most claims must be brought within three months of the date the employment comes to an end.
- Where the employee has a contractual entitlement to a payment (e.g. bonus or commission) provided they are in employment on the date of payment.
Where notice is given, the situation is usually straightforward since the date of termination is the date the employee's notice expires. Complications and confusion can occur where the employer or indeed the employee dismisses without notice.
Dismissal without notice can occur because of a breach of contract or because there is a payment in lieu of notice.
There are a number of practical points which arise from the case law:
- When dismissing with immediate effect ensure that this is communicated to the employee. It is not sufficient to simply send a letter (even by special delivery) because the date of dismissal will be the date the letter is read. In the case of Gisda Cyf v Barratt  ICR 1475 the employee went on holiday and the Courts decided that she was not dismissed until she read the dismissal letter upon her return (even though she was expecting a decision in the post). Ultimately an employee cannot be dismissed unless they are aware they are dismissed. It is advisable to dismiss face to face and hand deliver a letter to confirm.
- 'You are dismissed with immediate effect and will receive payment in lieu of notice' - sound familiar? Depending on the wording of your contract, in law, the employee will not be dismissed until the payment in lieu of notice is made. Therefore, if a dismissal is taking place with immediate effect to avoid the employee being employed on a certain date, it is advisable to pay in lieu of notice on the date of the dismissal.
- If an employee resigns in writing with immediate effect the date of termination is the date the employee hands in their letter, sends it by fax or e-mails (evidence by appropriate confirmations) or, where it is sent by post, the date on which they would anticipate their letter arriving in the normal course of the post that they have used. An employer cannot change the date of termination to the date it is processed by the relevant person at the employer.