Employment Law update. When does Termination of Employment occur?
Tuesday 26th November 2013
There have been previous cases that we thought had cleared this uncertainty up regarding when does termination of employment occur – culminating in Gisda cyf v Barratt, however, two recent claims have dealt with this issue again and brought it back into the limelight.
James Bellamy, Employment Law specialist at Marsden Rawsthorn Solicitors comments on these two cases (Secretary of state for Justice v Hibbert and Robinson v Fairhill medical practice).
In Hibbert the facts the EAT faced was a letter of resignation that stated “…I have no alternative but to resign my position”. There was a dispute between the parties as to when resignation took effect. Was it immediately, on the day it was communicated or was it meant to include the employees notice period?
This was an important question because if it was the former then the claim, which was subsequently issued, would be out of time. The EAT determined that the words used were unambiguous and they had the same effect as if she had said “I am resigning now”. The claim was therefore out of time. The second case concerned a dismissal communicated to the employee by her solicitor whom she had instructed to act on her behalf and was corresponding with the employer.
The employer sent the dismissal letter to the solicitor who communicated the dismissal to the employee on the day she received it but the employee only received the letter in the post the following day.
The question here, again for the purpose of time limits, was when was the dismissal communicated? When the solicitor told her client or when the dismissal letter was read by the employee. The EAT agreed with the tribunal in that it was when it was communicated to the employee by her solicitor. Following the ruling in Gisda, dismissal is effective when it is "communicated" to the employee and communication through a third party suffices.
It is important therefore to ensure that both parties are clear when termination is effective but if there is any doubt then you should err on the side of caution or in cases of resignation ask the employee to confirm when they intend their employment to terminate.
Authorised and Regulated by The Solicitors Regulation Authority. Authority number 591294.
For details of the professional rules governing the conduct of solicitors go to www.sra.org.uk/code-of-conduct.page