Appeal No. EATS/0025/04

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 30 June 2004

 
Before
THE HONOURABLE LORD JOHNSTON
MR P PAGLIARI
MR M G SMITH

 

Ms CLARE O’BRIEN	APPELLANT

 

 
PACITTI JONES	RESPONDENTS

 
 
Transcript of Proceedings
 
JUDGMENT

 

 

 
 
APPEARANCES

 

 
 
For the Appellant	Mr M West, Representative
Of-
Peninsula Business Services Ltd
Delphian House
Riverside
New Bailey Street
MANCHESTER   M3 5PB	

 

 
 
For the Respondents

 

 

 

 

Ms S Du Terroil, Solicitor
Of-
Messrs Macroberts
Solicitors
152 Bath Street
GLASGOW   G2 4TB

 

 

 

 

 

 

 

 
 
SUMMARY

 
TIME LIMITS
 
Unfair dismissal – Qualifying period – effective date of termination

 

 

 

 

 

 

 

 

 

LORD JOHNSTON:
 
1.	This is an appeal at the instance of the employee against a finding of the Employment Tribunal sitting in Glasgow that she did not have a sufficient qualifying period of employment to base a claim for unfair dismissal.
 
2.	The qualifying period is one year, commencing with the date of commencement of the employment, and terminating on the effective date of termination.  This, in turn, is considered by section 97 of the Employment Rights Act 1996 (“the Act”).  The other relevant statutory provision is to be found in section 86 which entitles an employee to a minimum period of notice which, in respect of a period of continuous employment of less than two years, is one week.
 
3.	The factual background to the matter is that the letter of termination was both posted and delivered to the appellant’s home address on 27 March 2003.  The appellant was away and did not receive and actually read the letter until 31 March.  The issue to be determined is which of these two dates is relevant to determining the effective date of termination, in the sense that, given the terms of section 97, if the period of notice actually given by the employer is less than seven days, i.e., one week, the employee is still entitled to one week, albeit it runs concurrently with such a shorter period of notice that may have been given in fact.
 
4.	Mr West, appearing for the appellant, argued that the effective date of termination, implicit in the letter of 27 March, was 3 April, being seven days from the 27th , but, nevertheless, the period of statutory notice could not run until the employee was aware that she was being dismissed (McMaster v Manchester Airport plc [1998] IRLR 112).  This was, in this case, 31 March.  It was submitted, accordingly, the appellant was entitled to seven clear days from that date, in respect of notice which took the position to 7 April 2003, employment having commenced on 8 April 2002.  The one year period of qualifying period was accordingly established.
 
5.	Ms du Terroil, appearing for the respondents, submitted that, properly understood, the Tribunal had got it right by determining that the effective starting date was the day after the letter was posted.  This she said was consistent with West v Kneels [1986] IRLR 430.  She also referred to two unreported cases, Potter, Cove & Hadley v R J Temple plc EAT 0478/03 and George v Luton Borough Council EAT 0311/03.  She also had a cross-appeal to the effect that if the appellant was correct, nevertheless the 31st should count in the seven-day computation, and, accordingly, the appellant failed by one day to achieve the qualifying period.
 
6.	We note that in both Potter and George the issue was the attempt by an employee to resign which is of course, the corollary to the present situation.  What is significant, that at least in general terms, knowledge of receipt appears to have been an issue.
 
7.	We recognise that to peril the effective date of termination on knowledge of the employee being aware of the fact that his employer is terminating his contract, may introduce an element of instability since it puts it in the hands of an unscrupulous employee to delay matters by simply not reading or ignoring the letter.  Be that as it may, we nevertheless consider that there is stability if the matter is periled on the issue of knowledge, inasmuch that it is in the hands of the employer to determine how he communicates his intention to terminate employment to his employee.  As is pointed out in Manchester the safest course is communicated verbally, even if followed by a letter.  To rely upon a letter alone may create the sort of difficulties that this case has thrown up.  It also seems to us, that it must be open to generally to argue that if an employee exploits the system acting in bad faith, he or she cannot expect to rely upon it.
 
8.	There is no issue of bad faith in this case.  It is accepted by the Tribunal that the employee read the letter as soon as she received it on the Monday on returning home.
 
9.	It therefore seems to us, following Manchester, that the period of seven days’ statutory entitlement to notice, or, indeed, the seven days’ notice itself, upon one view, does not start to run until 1 April.  Whether that is the correct approach or whether the approach of Mr West is to be preferred, namely, that the notice period imposed by the employer ran out on the 3rd, but the statutory entitlement of the appellant entitles her to four further days which gets her within the qualifying period by the narrowest of margins, on either view the qualifying period is established.
 
10.	With regard to the cross-appeal we do not consider 31 March can be counted, the statutory entitlement is clearly intended to be seven clear days.
 
11.	In these circumstances we consider the Tribunal misdirected itself in its approach.  The approach adopted by the appellant before us is the preferable one.  We therefore find that the effect of section 97 and section 84 is to allow the employee the further four days that she contends for, thus, bringing the qualifying period up to the 7 April, which admits the claim.
 
12.	In these circumstances and for this reason this appeal is allowed and the case remitted back to the Employment Tribunal to proceed as accords in relation to the claim for unfair dismissal.