Horwood v Lincolnshire County Council – constructive dismissal and the effective date of termination (EDT)

In this post we’re going to examine the recent Employment Appeal Tribunal case of Horwood v Lincolnshire County Council, a case revolving the jurisdiction of the Employment Tribunal to hear a constructive dismissal case where the complaint had been submitted to the Employment Tribunal one day out of time.

The facts in Horwood v Lincolnshire County Council

Mrs Horwood (“the Appellant”) commenced employment with Lincolnshire County Council (“the Respondent”) in 1985 and was employed as Practice Manager of the Respondent’s Older People’s Services Team. She was disciplined in 2009 because of a colleague’s allegations and demoted to a less senior position with a lower salary in September 2009. She was unhappy with the investigation and disciplinary process and therefore appealed. Her appeal was dismissed on 12 January 2010. She felt that the Respondent had committed a fundamental breach of her contract of employment and wrote to the Respondent on 28 January 2010 stating that she was resigning “with immediate effect”. This was read on 29 January 2010. There was subsequently confusion as to when the effective date of termination (“EDT”) fell as the Appellant was informed by the Respondent that her employment terminated on 2 February 2010, giving a limitation date of 1 May 2010. However, if the termination was effective as of 29 January 2010 then the limitation date was 28 April 2010. The Appellant submitted her ET1 claim form on 28 April 2010 by post and this was received on 29 April 2010 by the Employment Tribunal. The claim was dismissed as out of time at a Pre Hearing Review at the Leicester Employment Tribunal. The Appellant appealed this finding.

The law relating to constructive dismissal and the effective date of termination

This post will focus on the issues of the effective date of termination and limitation dates rather than the law of constructive dismissal as a whole.

In cases of constructive dismissal (employee resignations) the effective date of dismissal falls upon the date that the employee’s resignation is communicated to his or her employer. If the resignation is verbal then this is the date on which a representative first heard of the employee’s resignation. If the resignation is written (as is usual) then the effective date of dismissal is the date on which a representative of the employer first read the letter of resignation. Note the emphasis on representative – it is not necessary that the letter of resignation is read by the person that it is addressed to, simply that any representative of the employer has read the letter.

Further, the fact that a representative of the employer’s is mistaken as to the effective date of termination does not change the effective date of termination unless the parties specifically agree to a changed date.

Regarding limitation dates, the limitation date for a claim of constructive dismissal is three months less one day from the date of the dismissal. Therefore if the employee resigns on 2 January 2012 they have until 1 April 2012 to submit a complaint to the Employment Tribunal. If a complaint is submitted after the 1 April 2012 by the employee then the Employment Tribunal will not have jurisdiction to hear their claim unless it was not reasonably practicable to submit the claim at an earlier date (a high threshold normally).

The Employment Appeal Tribunal’s judgment in Horwood v Lincolnshire County Council

The Employment Appeal Tribunal dismissed the Claimant’s appeal on the grounds that:

–          The Employment Judge was correct to conclude that on the facts the effective date of termination was the earlier date (29 January 2010) and that therefore the claim had been submitted one day outside the limitation date

–          The Claimant had not demonstrated on the balance of probabilities that it had not been reasonably practicable to submit her claim within the relevant time periods

Our thoughts on Horwood v Lincolnshire County Council

Issues such as these are more common than one would think in the Employment Tribunal. It is quite easy to become wrapped up in the detail of a case and not think clearly about all the issues at hand. However, this case demonstrates that failure to think clearly and logically about such an important issue as the date of termination of the contract of employment (and therefore the limitation date) can have fatal consequences for a claim in the Employment Tribunal.

Our recommendations in such (indeed all) cases are:

–          If there is possible confusion as to the effective date of termination, query this with the Respondent. If the Respondent agrees to a particular date as the effective date of termination then there is certainty for both sides

–          Always prepare and submit the claim well in advance of a limitation date so that such issues are avoided

–          Always submit a claim form by email so that there is certainty that a claim has been received on a particular date by the Employment Tribunal