Parker Rhodes Hickmotts Solicitors v Harvey EAT0455/11
Mr Harvey worked for PRHS as a solicitor from 1 September 2009. He was told on 28 July that his role would be redundant from 31 August 2010 and that he would be paid in lieu of holiday and notice up to 30 August. He was told that the notice was timed to avoid the risk of his acquiring one year’s continuous service which would have been the case had he been employed on 31 August 2010. After issuing the notice the partner became concerned the reference to 31 August might have the effect of giving him one year’s continuous service and therefore the partner sent on 29 July the second letter also dated 28 July which was in identical terms save that it stated that his role would be redundant from 28 August 2010.
Mr Harvey brought a claim for unfair dismissal in the Employment Tribunal and the Employment Judge found that he had not accepted any change to that date and therefore his claim was not out of time and the Tribunal had jurisdiction to hear his claim. The PRHS appealed. The Appeal Judge held that the case was covered by Stapp v The Shaftesbury Society 1982 IRLR 326 which case had been applied in the recent M-Choice UK Ltd v Aalders case where notice of dismissal was given to expire on 1 February 2011 but on 21 January the employer summarily dismissed the employee before she had reached the qualifying period of service. The EAT held that the effective date of termination was 21 January. In the Stapp case the Court of Appeal held that summary dismissal, even if wrongful, terminated the employment immediately meaning that an employee did not have one year’s continuous service. In the light of Stapp the Employment Appeal Judge held that the Tribunal had erred by finding that the second letter did not shorten his notice period ,making the effective date of termination 28 August. The reason for the second dismissal, whether because of a change of mind or it had made an error, was immaterial. The Employment Appeal Judge however acknowledged that notice, once given, cannot be unilaterally withdrawn. However, in this case PRHS did not seek to withdraw the original notice, it wished to proceed with the dismissal by bringing forward the effective date of termination. The second letter constituted a new notice as opposed to a variation of the first and was therefore permissible in line with Stapp and M-Choice.
Key point: It is permissible for an employer to shorten the notice period by unilaterally serving a fresh notice.