Effective
date of termination cannot be changed by agreement

In
Wedgewood v Minstergate Hull Ltd, the EAT held that if an employee is given
notice of dismissal expiring on a certain date, the fact that the employer
later agrees that the employee need not work to the end of the notice period
does not change the “effective date of termination” (EDT) for
purposes of calculating the start of the 3 month period allowed for bringing an
unfair dismissal claim.

Mr
Wedgewood was notified that he would be dismissed by reason of redundancy on
1st December 2008, the effective date of termination (EDT). He subsequently asked
his employer whether he could leave earlier, i.e. on 26th November. An
agreement was reached that while he would be paid up until the end of his
notice period, Mr Wedgewood would not be required to attend work after 26th
November other than for a handover meeting. Mr Wedgewood’s unfair dismissal
claim was presented on 28th February 2009, which was just within the required 3
month period of the 1st December 2008. But an employment judge decided that the
agreement had brought the EDT forward from 1st December to 26th November and
the claim was out of time.

Mr Wedgewood’s appeal
to the EAT was upheld. The employment judge had relied on Palfrey v Transco plc
[2004] IRLR 916, which held that where an employer agrees to an earlier leaving
date and pays the outstanding notice in lieu, this is a withdrawal of the
original notice of dismissal, and the substitution, by way of a fresh notice,
of a shorter period, thereby meaning that the EDT is brought forward. In this
case, however, while the agreement released Mr Wedgewood from having to attend
work after 26


November,
it confirmed that he would continue to be paid up until 1 December. This meant
that the EDT had not changed at all. Mr Wedgewood’s claim was therefore in time
and could proceed to a full hearing.

July 2010