The Employment Appeal Tribunal (EAT) has held that unless there is an express term in a contract of employment, contractual notice runs from the day after notice is given. Further, the fact that payment of wages to the employee ends prior to this date does not shorten the period of notice.

The case in question was Wang v University of Keele. Dr Wang was an employee of the University of Keele. On the afternoon of 3 November 2008 an email was sent to Dr Wang, attaching an electronic copy of a letter of dismissal giving three months’ notice. Dr Wang opened and read the email later that afternoon.

Thereafter, Dr Wang learned that he would only be paid until 2 February 2009, as this is when the University had calculated that his employment ended. Dr Wang brought a claim for unfair dismissal on 2 May 2009. The University contended that the effective date of termination (EDT) was 2 February as notice had commenced on 3 November 2008. In its view the unfair dismissal claim had not been raised within the required 3 months from the EDT and was out of time. The Employment Tribunal accepted these arguments and dismissed Dr Wang’s claim as it found that it was reasonably practicable for Dr Wang to have presented his claim in time. Dr Wang appealed this decision.

The Decision

The EAT allowed the appeal. The EAT considered the real issue to be the time from when the notice period runs, and whether it always runs from the moment notice is received, as was argued by the University. Having considered the relevant case law, the EAT concluded that unless there is an express term in the agreement dealing with when notice is to start, or the fact that notice is to start immediately can be construed from the terms of the contract, notice will run from the day following notice being given.

The EAT decided that in this case there had not been “clear” notice for the period agreed in Dr Wang’s contract of employment (i.e. three months). There was no basis for the EAT to conclude that Dr Wang’s period of notice was to begin on the day it was given. Therefore the period of notice did not start to run until 4 November 2008, the day after the notice had been given, and the EDT was, therefore, 3 February 2009. The fact that payment was only made to Dr Wang until 2 February 2009 did not serve to shorten the period of notice which had been agreed by contract.

Accordingly, Dr Wang’s claim had been submitted in time and the ET had jurisdiction to hear it.

Implications of the Decision

If provision is made in the contract of employment for the form and period of notice of termination of employment, this must be followed. Further, the period of notice cannot be shortened by one party alone. In determining when the period of notice runs from, the law takes no account of fractions of a day.

In cases involving written notice of dismissal, any ambiguity in the terms of the notice is to be resolved in favour of the employee receiving the notice, rather than in favour of the employer.

Employers should be aware that an employee’s entitlement to the full notice period should be carefully safeguarded in all instances. Failure to do so may put the employer in breach of contract. This could have implications for such matters as the enforcement of post-termination restrictions.

Further information

For further information on the issues raised in this ezine, please contact Alan Masson, Murray McCall or your usual contact within the Employment Team.
 

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