An unfair dismissal claim must be presented to a Tribunal before the end of the three-month period beginning with the effective date of termination. Where notice is given, this is the date on which the notice expires. To be lawful, notice must be in the form (usually written) and for the period prescribed by the contract of employment. Where a termination letter is silent as to when notice is to begin or end or the meaning and effect of the letter is ambiguous, it will usually be construed in favor of the employee.
This concept does not usually present problems but can do when a claim is lodged at the last minute and a dispute arises as to the date on which the notice period expired.
What has happened?
The Employment Appeal Tribunal has this month given guidance in a case, Wang v University of Keele, about the effects of a letter giving notice which was received after work on a working day.
The EAT has clarified that oral or written notice will not automatically run from the moment it comes to the attention of the employee, as fractions of a day are disregarded and the notice period is intended to be clear days. This means that, unless the contract specifies otherwise, notice will run from the start of the day after the day on which notice is received.
For example, if a week’s notice is given/received on a Tuesday, the period of notice will begin to run on the Wednesday and expire at the end of the following Tuesday.
The EAT also emphasised that where the phrase “beginning with” is used the period of notice includes the day of issue whereas the phrase “beginning from” will exclude the day of issue from the period of notice.
The EAT also noted that the general rule, where the relevant period of notice is a month or a specified number of months
beginning with the giving of the notice, is that the period ends upon the corresponding date in the appropriate subsequent month, less one day to exclude the day notice is given. Because, however, calendar months vary in length from 28 to 31 days and February lacks (usually) a 29th and (always) a 30th and 31st, the actual length of notice may vary depending upon when it is given. The same employee with “a month’s” notice would, for example, receive 29 days if given notice beginning with 30 November, 30 days if given notice beginning with 31 December and, most anomalously of all, 28 or 29 days if given notice beginning with 31 January (in a non-leap year and leap year respectively).
What does this mean for employers?
To avoid unecessary complications, it is good practice (1) to specify periods of notice in weeks rather than months; and (2) to include the following express wording in employment contracts and/or letters of termination to provide for when the notice period will begin to run. To exclude the possiblity that the date of receipt is excluded, the contract and letter should state “Noticeis effective beginning with the date of receipt.”