The Claimant wrote to the Respondent, tendering her resignation on notice. The resignation letter was unequivocal and unambiguous. She subsequently issued proceedings, but the Tribunal ruled that it had no jurisdiction to hear her claims on the basis that they were issued out of time (by a matter of days). The Claimant appealed on the ground that subsequent correspondence/ discussions between the parties demonstrated that they had agreed to extend the notice period so that her effective date of termination ("EDT") was almost 3 weeks later than originally proposed (which extension would have meant that her claims were brought in time).

The EAT dismissed the appeal. The Claimant's unequivocal notice of resignation was unaffected by subsequent discussions/ correspondence between the parties. Once she had resigned on notice, the Claimant could not subsequently unilaterally withdraw or extend her notice period. The Tribunal had been entitled to find on the facts that there was nothing in the correspondence/ discussions which amounted to mutual agreement that the notice of termination had been withdrawn. In the absence of any such agreement, the EDT remained the date on which the notice expired.

Tim Crane, Employment Law Solicitor

_______________________________

Appeal No. UKEAT/0168/15/JOJ

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 27 November 2015

Before

HER HONOUR JUDGE EADY QC

(SITTING ALONE)

WALLACE (APPELLANT)

LADBROKES BETTING AND GAMING LIMITED (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant
MS ALICE CARSE (of Counsel)
Bar Pro Bono Scheme

For the Respondent
MS SARAH KEOGH (of Counsel)
Instructed by:
Gateley LLP
Ship Canal House
98 King Street
Manchester
M2 4WU

**SUMMARY**

JURISDICTIONAL POINTS - Claim in time and effective date of termination

Effective date of termination - constructive dismissal - whether agreement to extend the notice period

Claims brought out of time given effective date of termination as found by the Employment Tribunal. Whether the ET erred in law in concluding that the Claimant's unequivocal notice of resignation was unaffected by subsequent discussions/correspondence between the parties.

Held: Dismissing the appeal.

Given that the Claimant's resignation had been unequivocal, whether adopting the approach laid down in by the majority of the Court of Appeal in TBA Industrial Products Ltd v Morland [1982] ICR 686 or the more liberal approach allowed by the EAT in Mowlem Northern Ltd v Watson [1990] ICR 751, it had not been open to her to subsequently unilaterally withdraw or change her notice period.

The ET had, further, reached a permissible finding of fact that nothing in the parties' subsequent discussions or correspondence affected her unequivocal giving of notice and thus there was no mutual agreement that impacted upon the effective date of termination.

As a matter of law and on the basis of its permissible findings of fact, the ET had been entitled to reach its conclusion in this regard.

**HER HONOUR JUDGE EADY QC****Introduction**

1. I refer to the parties as the Claimant and the Respondent as below. The appeal is that of the Claimant against a Judgment of the London (South) Employment Tribunal (Employment Judge Baron sitting alone on 8 May 2014; "the ET"), sent to the parties on 27 May 2014. The Claimant self represented before the ET but today has the benefit of representation by Ms Carse of counsel. The Respondent was represented both here and below by Ms Keogh of counsel.

1. By its Judgment, the ET dismissed the Claimant's claims as having been brought out of time. She appealed but her Notice of Appeal was initially considered on the papers by Mr Recorder Luba QC to disclose no reasonable basis for the matter to proceed. At a hearing under Rule 3(10) of the Employment Appeal Tribunal Rules 1993 before Lewis J, on 3 June 2015, the appeal was permitted to proceed to a Full Hearing solely on the question of whether the ET had erred in failing to find that the Claimant's notice period had been extended by agreement of the Respondent such as to render her claims in time.

**The Background Facts**

1. During her employment with the Respondent, the Claimant had unsuccessfully raised a grievance. Following what seemed to be the conclusion of that grievance process the Claimant wrote a long letter to the Respondent on 1 October 2012, which opened with her saying:

"I feel I have no option but to leave my position within the company. The reasons noted in the grievance appeal response where [sic] not of a satisfactory nature and offered no form of resolve or fix of any wrong doing to myself by the company. I [am therefore] handing in my resignation." (ET Reasons paragraph 9)

1. The penultimate paragraph of the letter set out the Claimant's notice requirement and her calculation of when her notice would expire. On the ET's finding, that was no later than 26 October 2012.

1. Ms Leonard, an employee relations adviser employed by the Respondent, responded to the Claimant on 5 October. She acknowledged receipt of the Claimant's letter but advised:

"It is my belief that you may be making a decision in haste and I would like you to re-consider your decision. In order for you to re-consider your decision I will not process you as a leaver at this point.

…

If I have not received any contact from you by Friday 19th October, or you have not sent a letter of appeal to Stuart Priday [the Respondent's HR director] by this date then I will accept your resignation and you will be processed as a leaver with effect from Friday 26th October 2012." (ET Reasons paragraph 11)

1. On 8 October, the Claimant contacted Mr Priday, and a meeting was arranged between them for 22 October 2012. The ET records their exchange on that day as follows:

"13. At the end of the meeting there was the following further exchange:

**Mr Priday: OK, important for me to reflect on this now, and try to understand why this process has taken as long as it has. I will respond formally. Clearly you're getting support in terms of being able to talk. I will get back to you by the end of next week.**

**The Claimant: Just to let you know that I will no longer be employed by then. My resignation will be in effect.**

**Mr Priday: OK, well should there be a way you feel your return could be rectified & resignation will not be a problem.**

14. The 'end of next week' would have been 2 November 2012. The Claimant accepted in evidence that her calculation of the expiry of her notice as set out in the letter of 1 October was 26 October, and that the reference in the meeting with Mr Priday to her having ceased to be employed by 2 November was a reference to the expiry of her notice on 26 October."

1. The ET declined to accept the Claimant's evidence that at this meeting she agreed with Mr Priday that her resignation would be suspended and her notice extended until the outcome of the meeting was notified to her and that, consequently, she remained an employee until then.

1. On 7 November, the Claimant chased the Respondent for a response from Mr Priday. He wrote to her on 12 November 2012, responding to the matters that she had raised on 22 October, and, in the final paragraph of his letter, stated:

"As mentioned earlier I do hope that you consider returning to work. Please contact Suzie Leonard to confirm which Shop you would like to return to and the date for such a return by Friday the 23rd November 2012. I confirm that you have now fully exercised your rights under the Grievance Procedures and that there is no further right of review." (ET Reasons paragraph 16)

1. The Claimant received that letter on 15 November 2012. On 30 November 2012 the Respondent issued her P45, which gave her leaving date as 15 November.

1. On 13 February 2013 the Claimant presented an ET claim, complaining of constructive unfair dismissal, disability discrimination and of arrears of pay and other payments.

**The ET's Conclusions and Reasoning**

1. The Claimant's claims having been clarified at an earlier case management telephone hearing, the issue for determination on 8 May 2014 was whether the ET had jurisdiction to consider the claims made, taking into account the applicable statutory time limits. The ET identified that the money claims related to a pay rise said to have been offered in December 2011 which had never been forthcoming. It was further clarified that the Claimant was not making any claim that continued after the date of her resignation. The ET therefore needed to identify the date upon which that took effect. For the purposes of the unfair dismissal claim and indeed the other claims, that meant determining the effective date of termination ("the EDT").

1. The Claimant's case was that her employment did not end until 15 November 2012, when she received the letter from Mr Priday: they had agreed (at the 22 October meeting) that her employment would be extended until then. The ET did not accept there had been such an agreement and did not consider the date on the P45 was of significance (in the ET's experience, the P45 often did not reflect the reality). The ET further held that the Claimant's letter of 1 October 2012 was an unequivocal resignation unaffected by any later discussions or correspondence and had the effect of terminating her employment on 26 October 2012 at the latest (ET Reasons paragraph 25). That being so, the claim of unfair dismissal and the other pay claims were presented out of time; that is, after the three month time limit that ran from the EDT. The time for the discrimination complaints also ran from the EDT; these had also been brought out of time, and the ET did not consider it was just and equitable to extend time.

**The Appeal**

1. The grounds of appeal permitted to proceed are twofold, essentially amounting to two sides of the same coin. The first relates to the proper construction of Ms Leonard's letter of 5 October 2012 and whether that amounted to an agreement that, if the Claimant appealed, the notice period relating to the resignation would be extended until after that appeal had been determined. Second, the Claimant was permitted to pursue her challenge in respect of the ET's conclusion that there had been no agreement to extend the notice period for her resignation. The Respondent resists the appeal, essentially relying on the ET's reasoning.

1. In advance of this hearing an application was made for the Employment Judge's notes of part of the evidence. Reference is made to those notes below.

**Submissions**

The Claimant's Case

1. The Claimant contends the effect of Ms Leonard's letter of 5 October 2012 was to allow that she could appeal to Mr Priday in respect of the grievance and thus that her resignation would not take effect on 26 October 2012 (as it would if she did not appeal). That meant her employment would then continue until the appeal was exhausted; that is, until the outcome had been notified to her. That happened on 15 November 2012; therefore that was the EDT.

1. While the case law allowed that an employer might give an employee a cooling-off period (see, for example, Willoughby v CF Capital plc [2012] ICR 1038 CA) that only applied in special circumstances, really where the employee had said, "I am resigning", and stormed out. Otherwise, the employer could agree that the date of termination might be extended provided that was within the operational period of the original notice (Willets v Jennifer Trust for Spinal Muscular Atrophy . The ET here erred in its approach to the Claimant's resignation letter, treating it as if it were the equivalent of an immediate resignation (and see the reference at paragraph 25 to the Claimant's resignation as "unequivocal", which suggested the ET read it as an immediate resignation rather than one on notice). By so doing, the ET effectively closed its mind to the possibility that the letter of 5 October 2012 was an agreement to extend the notice period.

1. The letter of 5 October was not simply giving a cooling-off period; it was not that type of case. The Claimant was giving notice, and there was an agreement to extend the notice period. The ET's finding there was no agreement to extend the notice period wrongly focused on the 22 October discussion. The Claimant was relying on the agreement as set out in/evidenced by the letter of 5 October, as corroborated by the parties' communications after 26 October.

The Respondent's Case

1. It was accepted that the Claimant had resigned on notice; the ET was aware of that and had not confused this with an immediate resignation case. Indeed, in evidence before the ET much time had been spent working out when the notice given would expire (determined as 26 October 2012). The ET considered whether or not there was an agreement between the parties subsequent to the 1 October letter but rejected that possibility; it was entitled so to do.

1. Otherwise the Claimant was saying that there was no evidence to support the finding that there was nothing after 1 October that affected the Claimant's unequivocal resignation on notice to expire 26 October. In this respect, the Claimant now relied on the letter of 5 October as invalidating the resignation letter. The criticism was misplaced. The ET analysed the documents and the wider evidence more generally and concluded otherwise.

1. As for the argument that there was an agreement to change the date of termination, the correct approach as a matter of law was that notice once given could not be unilaterally withdrawn and would take effect on the original date unless the parties had agreed to the withdrawal of the notice and the Claimant had then given another notice of resignation to expire on a different date. Any different approach would fail to recognise that the EDT was a statutory concept and it was not open to the parties to agree to change it (Fitzgerald v University of Kent at Canterbury [2004] ICR 737 CA). In a constructive unfair dismissal case an employee was saying they were accepting the employer's fundamental breach, entitling them to resign. In those circumstances, a Respondent had no choice as to whether or not to accept. Equally, the employee could not withdraw the notice unilaterally.

1. Correctly understood, the letter of 5 October 2012 could not have altered the EDT because: (1) the letter of 1 October was an unambiguous notice of resignation to expire on 26 October (as the ET found and against which there was, and could be, no appeal); (2) at most, the letter of 5 October offered the Claimant a cooling-off period, implying that if she withdrew her resignation that would be accepted by the Respondent; (3) in so far as the letter suggested the resignation would not be accepted until 19 October 2012 (to allow the Claimant to reconsider), that was of no legal effect; and (4) the letter did not mention the end of the appeal process at all: whilst permitting the Claimant to reconsider her position, it said nothing as to what would happen if she did appeal or otherwise contact the Respondent. The most that could be said the letter gave the Claimant a window to reconsider her position, within which time the Respondent would agree that the notice of resignation could be withdrawn. The totality of the evidence below supported that view of the letter. Further, as the notes of evidence made clear, the Claimant below contended she reached an agreement with Mr Priday on 26 October; she had not relied on the 5 October letter.

1. Asking whether the ET had erred in law, there was more than sufficient evidence to find that there was no agreement to extend the notice period or on the proper legal analysis an agreement for the withdrawal of resignation and new notice.

The Claimant in Reply

1. The Claimant did not accept her case below relied on an agreement on 22 October; she relied on the 5 October letter as corroborated by her contact with the Respondent on 15 November.

**The Relevant Legal Principles**

1. The EDT (from which the relevant time limits ran) is, in the case of an alleged constructive dismissal, defined by section 97(1)(a) of the Employment Rights Act 1996 ("ERA"), as follows:

"(1) Subject to the following provisions of this section, in this Part "the effective date of termination" -

(a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires,

…"

1. The EDT is a statutory construct. It is to be determined on an objective basis, as it depends on what has happened between the parties not on what they might agree to treat as having happened (see per Sedley LJ in Fitzgerald at paragraph 20).

1. Where what has happened is that the employee has resigned in circumstances in which she contends she was entitled to do so by way of acceptance of the employer's fundamental breach of contract (an allegation of constructive dismissal), that resignation will take effect with or without the employer's agreement.

1. Where, however, the employee's resignation takes place in the heat of the moment, it has been recognised that there may exist special circumstances in which the employer - the recipient of the resignation - might be required to first satisfy itself that the employee really did mean to resign (and had not simply used words suggesting that course when that was not really the employee's intention). In such a case, however, the employer is not being given the power of refusal; if the resignation was genuine, it will take effect. Similarly, the employee is not being given the opportunity to unilaterally withdraw her resignation; applying ordinary contractual principles, she cannot (Harris & Russell Ltd v Slingsby [1973] ICR 454 NIRC).

1. What has been described as a cooling-off period is no more than the allowance of a period during which the employer might be satisfied that its understanding that there has been an unequivocal resignation is correct (see the discussion to this effect at paragraphs 37 to 38 in the Judgment of Rimer LJ in Willoughby and at paragraph 25 of the Judgment of Supperstone J inSecretary of State for Justice v Hibbert .

1. Assuming that the resignation is indeed unequivocal, the rule remains that a notice of termination once given cannot be withdrawn except by consent: the employer cannot unilaterally prevent an employee's resignation taking effect, although it can agree with the employee that she might withdraw that resignation (Willoughby). If there is no agreement that the employee's notice of resignation is withdrawn, the effective date of termination will be the date on which the notice expires (section 97(1)(a) ERA), and it has been held (see the majority view of the Court of Appeal, Ackner LJ dissenting, in TBA Industrial Products Ltd v Morland [1982] ICR 686) that it will not be open to the parties to agree to change that date: the EDT has been fixed by the date of expiry given in the notice (and see, to similar effect, the decision of the majority in Lees v Arthur Greaves (Lees) Ltd [1974] 2 All ER 393 CA).

1. A somewhat more liberal approach was allowed by the EAT in Mowlem Northern Ltd v Watson [1990] ICR 751, where it was permitted that there was nothing in law to preclude a mutual agreement to postpone the date of expiry of a notice of dismissal until the happening of a particular event; although, in that case, the date of expiry was relevant to the employee's entitlement to a redundancy payment from his employer, not to the establishment of the EDT for any statutory purpose.

1. Returning to the permissible case of an agreement that the employee's notice of resignation is withdrawn, the employee might then give a further notice of resignation of a different date of expiry. That possibility was allowed by the EAT (Popplewell P presiding) in Staffordshire County Council v Secretary of State for Employment [1987] ICR 956 and by a different division of this court (Burton P presiding) in Palfrey v Transco plc  [1982] ICR 686, upholding the ET's finding that such an agreement was to be implied.

1. In Palfrey the EAT went further, indicating that had it been necessary to do so it would have concluded that the majority Judgment in Morland was per incuriam. Doubt was also cast on the approach adopted in Morland by the EAT (Silber J presiding) in [Wedgewood v Minstergate Hull Ltd UKEAT]()/0137/10, albeit it was unnecessary to decide the point in that case.

1. The difference in approach was further alluded to by HHJ Peter Clark when giving Judgment in Willets. HHJ Peter Clark considered that, although notice once given by an employer could not be unilaterally withdrawn, it could - during the operational period of that notice - be extended by agreement between the parties. What could not be done, however, was for the parties to agree a retrospective EDT; so, to purport to agree a different date of termination after the expiration of the notice (see also Horwood v Lincolnshire County Council UKEAT/0462/11). In deference to the approach of the majority of the Court of Appeal in Morland, however, HHJ Peter Clark made clear that the case could equally be approached as one in which the parties had agreed to the withdrawal of the original notice with the Claimant then giving new notice with a different termination date.

**Discussion and Conclusions**

1. The ET in the present case made a clear finding that the Claimant's letter of 1 October 2012 amounted to an unequivocal resignation. That was not misunderstanding the position as one of immediate resignation, it was simply a finding that she had resigned on notice in a way that was unambiguous and unequivocal.

1. The way in which the Claimant calculated her notice period in that letter meant that it would expire (as the ET found) "on 26 October 2012 at the latest" (paragraph 25). That being so - whether adopting the Morland or the Palfrey approach (see the discussion above) - the Claimant could not subsequently unilaterally withdraw her notice nor could she unilaterally change the notice period.

1. If free to determine the point without regard to the approach laid down by the Court of Appeal majority in Morland, I would adopt the principles laid down by HHJ Peter Clark in Willets (see above). Like HHJ Peter Clark in that case, however, I think the answer to the present appeal would be the same in either event.

1. Before the ET, although not before me, the Claimant placed reliance on the date given in the P45. There is, however, now no dispute: the ET was entitled to find that that did not state the true EDT; simply because the parties subsequently referred to a later date as the termination date did not make it so (Fitzgerald). That would also be true of the later communications between the parties which post-dated 26 October 2012 (on which the Claimant has sought to place some reliance on this appeal).

1. The ET was thus entitled to approach this question starting not from the date of the P45 or the parties' dealings in November but from the Claimant's resignation letter of 1 October 2012.

1. Starting with that letter, paragraph 25 of the reasoning represents the ET's crucial finding: the Claimant's letter of 1 October 2012 was an unequivocal resignation giving notice that would expire on 26 October 2012, which was not affected by any later discussions or correspondence.

1. In terms of those later discussions, the ET plainly understood the Claimant to be relying on an agreement she alleged she had entered into with Mr Priday at their meeting on 22 October (an understanding supported by the Employment Judge's notes of the Claimant's evidence). To the extent that was her case, the ET expressly rejected it (paragraph 15). There could be no appeal from that conclusion on the facts.

1. The Claimant's focus on appeal has been, however, on the Respondent's earlier letter of 5 October 2012. It is right that that letter, as the ET's reasoning records, seemed to permit the Claimant the opportunity to reconsider her position. That, of course, could not serve to prevent the Claimant's resignation taking effect on the date upon which her notice would expire. The most the Respondent could be said to be doing in that respect was indicating that, if the Claimant did seek its agreement that she could withdraw her notice, it would be amenable to that course and was therefore giving her time to consider her position.

1. It is also right that the letter of 5 October went on to say what the Respondent would do if it did not hear from the Claimant; that is, it would assume that her employment would end as per her notice on 26 October 2012. By saying that, in those circumstances, the Respondent would accept the Claimant's resignation, however, the letter did not give rise to any implication that the resignation would otherwise not take effect. The fact is that the Claimant never did seek the Respondent's agreement that she might withdraw her notice. She might have been prepared to consider doing so if her appeal to Mr Priday had resulted in some different way forward, but that is not the way things turned out, and, as she recognised in her exchange with him on 22 October, her resignation remained in effect, and her employment was due to terminate on 26 October. All of that is apparent from the ET's permissible findings of fact based on the letters of 1 and 5 October 2012 and the record of the 22 October meeting.

1. Is it possible, however, that the letter of 5 October 2012 should properly have been read as recording an agreement with the Claimant and/or as making an offer to her (which she accepted by submitting her appeal to Mr Priday) that her resignation would only take place at a later date, on the communication to her of the outcome of her appeal? Even assuming that was how the Claimant was intending to put her case below - and I am by no means convinced of that - I cannot see that the letter of 5 October 2012 can be read in that way. Whilst, as I have stated above, I can see it indicated what the Respondent's position would be if the Claimant wanted to enter into an agreement to withdraw her resignation, I cannot see it recorded any agreement that the date of the expiry of her notice had been, or was to be, changed.

1. The ET's conclusion at paragraph 25, that the Claimant's unequivocal notice of resignation to take effect on 26 October 2012 was unaffected by any subsequent discussions or correspondence, was thus entirely permissible. The ET did not overlook the letter of 5 October. It was just not persuaded that that letter altered the position. As a matter of law and on the basis of its permissible findings of fact, that was a conclusion that was entirely open to it. Accordingly, for those reasons, I dismiss this appeal.