When Does Contractual Notice Commence?

An employee wishing to bring a claim of unfair dismissal must do so before the end of the three-month period commencing with the effective date of termination (EDT) of their employment. Where a period of notice is given, the EDT is the date on which this expires. It is therefore important to be clear as to exactly when this falls.

In Wang v University of Keele, Dr Wang was dismissed in a letter sent as an email attachment at 4.40 pm on 3 November 2008. The letter was from the Director of the Institute of Science and Technology in Medicine and informed Dr Wang that he was being dismissed on performance grounds and that he was entitled to three months’ notice. Dr Wang read the letter on the same day. He sought to challenge the decision via the internal appeal procedure, but his appeal was dismissed.

The University sent a letter to the Benefits Agency informing it that Dr Wang would be employed until 2 February and would be paid up until that day. Dr Wang took legal advice with a view to bringing a claim for unfair dismissal and was advised that any claim would have to be brought within three months of his EDT. His claim was submitted to the Employment Tribunal (ET) on 2 May 2009, in the belief that this was the last day of the three-month period for submission. The University argued that Dr Wang’s EDT was 2 February 2009 and, accordingly, the claim was out of time.

The ET upheld the employer’s argument that three months’ written notice given and received on 3 November 2008 expired on 2 February 2009. Dr Wang had been aware that his employment would end on that date and it therefore followed that his claim would have to be submitted by 1 May 2009 to be in time. He had taken legal advice and the ET found that it had been reasonably practicable for him to meet the deadline.

Dr Wang appealed to the Employment Appeal Tribunal (EAT), which allowed his appeal. Having reviewed the relevant authorities, the EAT focused on the decision in West v Kneels, which is authority for the proposition that the law does not take account of fractions of a day and that notice does not always run from the moment the employee becomes aware of it.

The EAT held that notice can only have immediate effect if the contract provides that it should do so or if there is express agreement to this effect. There was no evidence of this in Dr Wang’s case and there had not, therefore, been ‘clear’ notice of the period stipulated in his employment contract. His notice had been one day less than that. An employee is entitled to the period of notice stipulated in the contract, not that period minus one day. This can be achieved by discounting fractions of a day and commencing the notice period on the subsequent day.

On this basis, Dr Wang’s notice period did not start until 4 November 2008, so his EDT was 3 February 2009. The statutory limitation period ended on 2 May 2009, the day on which his claim was submitted, and his claim was, therefore, in time.