In the recent case of Wang v University of Keele, the EAT held that, unless the contract provides otherwise, contractual notice, whether it is oral or written, runs from the day after notice is given. The situation is different where, as in Gisda Cyf v Barratt (which we reported on in October 2010), an employee is summarily dismissed. Then, the effective date of termination is when the employee has knowledge that they have been given notice of termination.

The background

Dr Wang, a university academic, received an email giving him three months' notice of termination but the email did not state the termination date. Dr Wang read the email on 3 November 2008. A letter, which stated that he would only be paid up until 2 February 2009, was sent to him by post. The earlies the could have received this letter was 4 November 2008.

Dr Wang lodged a Tribunal claim on 2 May 2009. The University argued that his claim was one day out of time, because his last day of employment was 2 February 2009, and his claim should therefore have been submitted by 1 May 2009. The Tribunal agreed and rejected Dr Wang's claim. He appealed.

The EAT's decision

The EAT held that:

  • contractual notice, whether it is verbalor written, can only start to run immediately if the contract states that this will be the case;
  • if the contract does not say this (as is usual in contracts of employment), the notice period starts to run from the day after it is given;
  • a termination letter should state clearly when notice expires; and
  • the concept of written notice includes"modern methods of communication such as the SMS text message, internet based so-called instant messaging and email".

In this case, notice did not start to run until 4 November, because this was the day after the day on which notice had been given to Dr Wang, and his claim was therefore in time.

The implications

To avoid the situation the University was faced with, employers should ideally include in employment contracts wording to the effect that "any notice to be given under this Agreement shall take effect immediately on the day that it is issued, irrespective of the time or date it is received". However, in respect of employees who do not have such a provision in their contracts, employers should note that their notice period will start the day after it is given, and should ensure that the termination letter clearly states:

  • the employee's notice period, in weeks/months, as provided in their contract; and
  • when the notice period expires.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.