Some recent cases to be aware of….
When does notice of termination of employment take effect?
In Newcastle Upon Tyne NHS Foundation Trust v Haywood, the Supreme Court considered whether notice of termination becomes effective:
- when the notice would have been delivered to the employee via normal course of post; or
- when the notice actually was delivered; or
- when the notice is read by the employee, or reasonably could have been read.
The Supreme Court held that notice was effective from the date when the employee read the letter, which in this case was after the employee’s return from holiday, thereby entitling her to a considerably higher redundancy payment due to her recent 50th birthday.
So where the timing of notice is imperative, extra care must be taken by employers.
Constructive dismissal and the ‘last straw’
Constructive dismissal occurs where an employee resigns in response to a fundamental breach (known as ‘repudiatory breach’) by their employer of their employment contract. A series of minor breaches can collectively amount to a repudiatory breach – the ‘last straw’ principle.
In Karur v Leeds Teaching Hospitals NHS Trust, the Court of Appeal considered whether an employee claiming constructive dismissal can rely upon a series of acts by the employer, including a repudiatory breach of contract committed some time ago and where the employee had not resigned in response to that earlier breach when it occurred.
The Court held yes, they could. In claims relating to constructive dismissal, an Employment Tribunal should ask themselves:
- what was the most recent omission or act by the employer which triggered the employee’s resignation?
- has the employee affirmed the contract since that omission or act?
- if not, was the omission or act a repudiatory breach of the contract in itself?
- if not, was it part of a series of omissions or acts by the employer which, considered together, amounted to a repudiatory breach?
- did the employee then resign in response, either wholly or partly, to that breach?
In this case, the purported ‘last straw’ was a failed appeal against a disciplinary sanction by the employee. The Court held that in this case the process followed by the employer in respect of the appeal was lawful, and therefore did not amount to a ‘last straw’. The claim of constructive dismissal was therefore dismissed.
Extension of time after mistaken Acas advice
In DHL Supply Chain v Fazackerley, the Employment Appeal Tribunal (EAT) considered whether the time limit for bringing an unfair dismissal in the Employment Tribunal, which is 3 months from the date of dismissal, should be extended following mistaken advice from Acas.
Following dismissal for gross misconduct, an employee was advised by Acas to exhaust the employer’s internal appeal procedure before submitting a claim to the Employment Tribunal. Due to unforeseen delays, the appeal process was not exhausted until after the 3 month deadline had passed and the employee’s Tribunal claim was only submitted after that deadline had passed. Acas had not made the employee aware of the 3 month time limit for lodging a Tribunal claim.
The Employment Tribunal held that, whilst Acas’ advice to exhaust the internal procedure was good practice, advice should also have been given regarding the 3 month limitation period. In the circumstances, the Tribunal decided that it was not reasonably practicable for the employee to have presented their Tribunal claim in time and so their claim was allowed to proceed. The EAT decided not to overturn that decision.