In this case, the Employment Appeal Tribunal (EAT) clarified the position regarding when notice of termination starts to run. Overturning the Employment Tribunal, the EAT held that notice of termination starts to run the day after it is given, unless the contract specifically states otherwise. Leaving aside issues as to when notice has been effectively received, employers should take care in calculating when notice expires as, to cease paying an employee before the end of their notice period, is a breach of contract. Any breach of contract on termination may open the door for employees to claim that post-termination restrictions fall away and so a seemingly minor breach could have far-reaching consequences.
On these facts, Mr Wang was given (and received) three months' notice on 3 November 2008 and his notice of termination letter stated that the last day for which his employer would pay him was 2 February 2009. Mr Wang filed an unfair dismissal claim on 2 May 2009 believing this to be the last day for him to do so. The EAT held that his claim was filed in time on the basis that his notice period started to run the day after he received the notice of termination letter, 4 November 2008. Therefore, his notice expired on 3 February 2009, not 2 February 2009 as his employer had stated in the letter.
When calculating the deadline for filing an unfair dismissal claim it is vital to correctly ascertain the 'effective date of termination' (EDT) as claims must be brought within three months of that date. Mr Wang's EDT was 3 February 2009 (the date on which his notice expired) and so the last day for him to bring a claim was 2 May 2009.
If employers would prefer that notice starts to run immediately then contracts of employment should be amended to reflect this fact. In the absence of an express provision in the contract, the assumption is that the notice period will start to run on the day after the notice is given.
EAT 2011 ICR 1251