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taratill
taratill, Solicitor
Category: Employment Law
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Experience:  15 years experience of advising on employment law matters
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I am currently assisting a friend, with a claim against s

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HelloI am currently assisting a friend, with a claim against his former employer. He has today received notice of a preliminary hearing to decide if he has the required two years service to bring a claim to the ET, following an application made by his employer.Less than a month from reaching the minimum 2 years service, he resigned giving one month contractual notice meaning as per s.97(1a) of the ERA, the EDT would be after he had been employed for two years. However, the day after he resigned, his employer said that they would accept his resignation with immediate effect (even though he gave one months notice) and that a PILON would be paid at a later date.My friend wrote back to his employer, explaining that the contract of employment did not include a PILON clause and the payment of such would be a breach of contract. He also affirmed his contract by confirming that he was willing to return to work until the end of the notice period stated in his letter of resignation.In response the employer said that the contract does not include a PILON clause and that he would not be required to work his notice period. However, the employer argues that the EDT is on the day that they accepted the resignation with immediate effect (even thought it was given with 1 month contractual notice) and not at the end of the contractual notice as detailed in the notice given in the letter of resignation.The employer has also written to my friend, stating that he has never been dismissed and that his employment was terminated as a result of his resignation.My question therefore is in two parts:(A) Are the above actions by the employer - accepting a resignation with immediate effect, when 1 month contractual notice had been given and offering a PILON, when it is agreed that the employment contract has no PILON clause enough to bring forward the EDT, given that the employee reaffirmed his contract.(B) If the answer to B is no, are there any arguments that can be used to support the argument that the EDT is at the end of the contractual notice given by the employee - except with reference to s.97(1a) of the ERAFor example
When an employer waives its right to notice - does this bring forward the EDT
Submitted: 10 months ago.
Category: Employment Law
Expert:  taratill replied 10 months ago.

Hello my name is ***** ***** I am happy to help you today.

a) Sadly no. Caselaw dictates that where an employer brings employment to an end in this manner the EDT is the date upon which the employment ends. So if there is no PILON your friend does not have adequate service.

b) Again there has been caselaw on this and there is no way of extending the employment to bring the service to 2 years.

If your friend is put on a costs warning I would advise him not to pursue it. If any offer is made on an economic basis it should be accepted.

I am really sorry that I cannot be more positive on this. I agree that on the face of it it is extremely unfair but the legal position on this is very clear indeed.

If you have any further questions please do ask. If I have answered your question I would be grateful if you would be so kind as to rate my answer. Thank you and all the best.

Customer: replied 10 months ago.
Thank you JennySo that I understand correctly, it doesn't matter that the employee was not dismissed, that he gave notice and that there is no pilon clause but he reaffirmed his contract ?Thank you
Customer: replied 10 months ago.
Would not Wedgewood v Minstergate Hull Ltd [2010] UKEAT 0137_10_1307 (13 July 2010) have a bearing ?
Expert:  taratill replied 10 months ago.

Yes that's right. The claim he is trying to bring is constructive dismissal. He needs 2 years service to bring the claim.

If they employer does not want him to work the notice and pays him in lieu (in breach of contract) then the last day he works is the Effective Date of Termination. If the contract allowed for the payment in lieu then the Effective Date of termination is the end of the contract period. The employer has effectively stitched him up but there is no remedy as the Tribunal will not extend or construe the contract as having a clause which is not there in these circumstances. The fact that he was willing to work notice makes no difference to the situation.

In the case you site the employer confirmed the EDT was the end of the notice period. I do not believe that this has happened here. If the employer has written to the employee to say that they acknowledge the EDT is the end of the notice period but they will pay him in lieu then the position, will of course, be different.

I am sorry this is not the answer you want. I would be grateful if you would positively rate my answer as I am not otherwise credited for my time.

taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6307
Experience: 15 years experience of advising on employment law matters
taratill and other Employment Law Specialists are ready to help you
Customer: replied 10 months ago.
Thank you

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