Whilst the effective date of termination (EDT) of a contract of employment can be altered by an express agreement between an employer and employee (Palfry v Transco [2004] IRLR 916), the EAT held in Wedgewood v Minstergate Hull Ltd UKEAT/0137/10/DA that the EDT is not altered simply because the employee is absolved of their duty to work.
Mr Wedgewood had been selected for redundancy and given notice expiring on December 1, 2008. He wished to leave employment earlier than the date on which his contractual notice period expired and Ministergate Hull Ltd (the Company) wrote to Mr Wedgewood on November 26, 2008 stating that he could be released from his employment as of the date of the letter but would still be paid to the last date of his notice period. Mr Wedgewood issued his claim form on February 28, 2009 (over three months from the date of the Company's letter). The Tribunal held, at first instance, that the Company's letter had brought the EDT forward to November 26, 2008, so the claim had been brought out of time.
On appeal, the EAT held that the letter dated November 26, 2008 did not constitute a variation as the agreement with Mr Wedgewood expressly provided for payment to him until the end of his notice period. The fact that Mr Wedgewood had not been required to work out his notice did not operate to effect a variation of his EDT. Mr Wedgewood was therefore allowed to continue with his claim.
This case demonstrates that employers must take care when dealing with an employee's notice period; a Tribunal will consider not only the correspondence between the parties but also how the parties act in practice, including whether salary continues to be paid and if so, for how long.
