Contractual notice runs from the day after it’s given (Wang v University of Keele)

Overview
Unless the contract of employment states or can be construed otherwise, contractual notice, whether or oral or written, runs from the day after notice is given.

As is often so in such cases, this case concerned whether an employee’s unfair dismissal claim had been presented within the 3-month time limit. This entailed working out his effective date of termination and this depended on what date his notice began to run.

Dr Wang received an email, which he opened and read, on 3 November 2008 giving him 3 months’ notice of termination. The covering letter, dated 3 November but which could not have been received by post until 4 November, was received a few days later, stating that he would only be paid up until 2 February 2009. Dr Wang presented his unfair dismissal claim on 2 May 2009. The employer argued that his claim was 1 day out of time, because Dr Wang knew that his last day of employment would be 2 February, the effective date of termination of employment was 2 February and therefore his claim should have been submitted by 1 May. The tribunal dismissed Dr Wang’s claim as a day out of time as it said his notice ran from 3 November to 2 February. Dr Wang appealed, arguing that even though he was aware of his dismissal on 3 November, part days did not count when calculating the notice period, so notice did not start until 4 November.

The EAT agreed with him. The only issue for the EAT was when Dr Wang’s notice period started. It reviewed many of the cases on this subject and held that the principle in the 1987 case of West v Kneels – that when verbal notice is given, notice starts on the following day – applies equally to written notice. Part days do not count and notice does not always run from the moment it comes to the attention of the employee. The EAT could see no reason in principle for distinguishing between oral and written notice – ‘the message is the same and the difference in medium of communication seems ... insignificant’. Therefore notice did not start to run until 4 November (with dismissal taking effect on 3 February) and Dr Wang’s claim was in time. It was irrelevant that he had only been paid to and stopped work on 2 February; notice once given cannot be shortened without agreement.

The EAT pointed out that if the employer makes the dismissal date ambiguous, then the notice should be construed in favour of the recipient. It also observed (without recommending it) that written notice can include ‘methods of communication such as the SMS text message, internet based so-called instant messaging and email’.

Wang v University of Keele