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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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If an employee resigns giving 1 month notice and the

Resolved Question:

If an employee resigns giving 1 month notice and the employer states that it accepts the resignation with immediate effect and pays a PILON, when there is no clause in the contract of employment for the payment of a PILON, is the EDT brought forward, or does it remain when the notice given by the employee expires as per s.97 of the ERA ?
As the PILON was a breach of contract, the employee reaffirmed the contract and confirmed that he would be willing to work his notice period
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.

Hello what is the relevance for when the end of employment is, would it be to do with length of service on a particular date?

Customer: replied 1 year ago.
Hello, it relates to establishing if there is two years of continuous service to bring a claim to the ET. The employee, resigned after working for 1 year and 11 months, giving 1 month contractual notice. The decision was made to accept the resignation with immediate effect and pay a PILON (without a clause in the employment contract) to bring the employment to an end with immediate effect
Expert:  Ben Jones replied 1 year ago.

If there is no PILON clause then the employer who dismisses without serving the required notice will be acting in breach of contract. This would allow them to pursue the employer for any sums due payable had they been allowed to continue working throughout their notice period, such as additional pay, benefits, bonuses, etc.

However, that does not mean that their qualifying service would have been extended by the period of the contractual notice period to take them over the necessary threshold to claim unfair dismissal protection.

Following the landmark decision in the case of Geys, it was noted that the question of when the contract terminates for unfair dismissal purposes is distinct from the question of when it terminates for common law purposes.

When it comes to the qualifying period for bringing an unfair dismissal claim, the date of termination can be extended where the statutory minimum notice period was not given. In this case, if the employer summarily dismisses (i.e. ends their employment with immediate effect, even if no PILON clause existed) the termination is extended by the statutory minimum notice period. For someone with less than 2 years’ service that would be 1 week. So in the best case scenario for the employee, they can extend their date of termination by 1 eek from the date of dismissal.

This was also confirmed in the case of Harper v Virgin, where the court held that an employee cannot go around the unfair dismissal qualifying period issue by arguing the employer’s breach of contract resulted in a loss of a chance to bring a claim for unfair dismissal.

I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you

Customer: replied 1 year ago.
Hello thank you for your response. Would the fact that the Employer insists that it did not dismiss the employee and only accepted the employees resignation with immediate effect, have any bearing on the EDT ?
Expert:  Ben Jones replied 1 year ago.

the EDT will not really be under dispute then as it would simply be the date on which the resignation was given and accepted by the employer

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