conditional resignation did not determine effective date of
termination
A recent EAT decision has highlighted that when it comes to
deciding the effective date of termination of employment in an
unfair dismissal claim, the deciding factor is what actually
happened between the parties and not what the parties wished or
agreed. This was the issue in a recent case where the EAT had to
decide whether the employee's claim was brought out of time.
The employee wrote a letter of resignation to his employer on
the 29 August 2009. It was a conditional resignation depending on
two factors, with the result that the resignation was not definite
and the employer could not action it. Correspondence went forwards
and backwards between the employee and employer about trying to
come to some sort of agreement. On the 3 September the employee
sent another email to the employer stating that he was actually
resigning and that his resignation was effective from the 29
August. The employer wrote back and accepted the employee's
resignation. The ET decided that the email sent on the 3 September
was clarity for the conditional resignation letter sent on the 29
August and that the effective date of termination was therefore 29
August. This meant that his claim was out of time.
In the EAT, this finding was reversed. It was held that the
effective date of termination for unfair dismissal claims was a
statutory construct which could not be deviated from. The letter
sent on the 29 August by the employee was conditional; it was not
an unequivocal resignation. This could not be seen as the day the
employment contract was terminated despite what the parties
thought. The unconditional resignation sent on the 3 September
determined the effective date of termination and it could not be
backdated either by the employee or the employer. The claim was
therefore presented in time.
