Potter & others v RJ Temple plc (in liquidation), EAT, [2003] All ER (D) 327

Resignation by fax: Potter resigned (in response to an alleged breach of contract by his employer) on Friday, 13 September 2002. The resignation letter was sent by fax to the employer’s office at 8.21pm, after the office had closed.

Potter’s tribunal complaint for unfair dismissal was dismissed for being one day out of time, having been submitted to the tribunal on 13 December 2002. He argued his resignation was not effective until it was read by someone in authority at the employer (at the earliest on Monday, 16 September) and therefore his claim was in time.

The EAT dismissed Potter’s appeal. The effective date of termination for the purposes of unfair dismissal was not necessarily the date his decision to resign was communicated to the employer (in contrast to normal principles of contract law).

The key consideration here is the intention of the parties. Where an employee communicates their immediate acceptance of a fundamental breach of contract by fax, the effective date of termination is that the date on which the fax is received in the company’s office, not any later date when it is read or acted upon.

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