Share it

Determining the effective date of termination of employment is essential for the purposes of calculating the date from which the time limit for bringing relevant employment tribunal claims starts to run and whether a claim has been brought in time.

In Gisda Cyf -v- Barratt, the Supreme Court upheld the Court of Appeal, Employment Appeal Tribunal and employment tribunal decisions that the effective date of termination of employment was the date the employee actually read the letter confirming the summary termination of her employment and not the date the employer’s letter of dismissal was written, posted or received at the employee’s house.

Miss Barratt was suspended from her job at a charity organisation following an alleged incident of gross misconduct.  She was told by her employer at a disciplinary meeting, on Tuesday 28 November 2006, that she should expect to receive a letter informing her of their decision within the next two days, i.e. by Thursday 30 November.  The employer posted a letter to Miss Barratt on Wednesday 29 November informing her that she had been summarily dismissed. The letter was sent by recorded delivery and arrived, as the employer had said, on Thursday 30 November.  As Miss Barratt had gone away to visit her sister, someone else signed for the letter.  Whilst away, Miss Barratt telephoned home but did not make any enquiries as to whether the employer’s letter had arrived.  Miss Barratt did not return home again until the evening of 3 December and opened the employer’s letter on Monday morning, 4 December.

Miss Barratt subsequently brought claims against her employer, which included unfair dismissal.  If, as Miss Barratt contended, the effective date of dismissal was 4 December, her claim was within the requisite three month time limit and could proceed.  If it was earlier, as the employer alleged, Miss Barratt’s claim was out of time.

In summary, the employment tribunal, Employment Appeal Tribunal and the Court of Appeal all found that Miss Barratt’s claim was in time on the basis that the effective date of termination is the date on which an employee reads the letter of dismissal or at least has had a reasonable opportunity to read it.  The position may have been different were there evidence to suggest that the employee had deliberately gone away to avoid receiving the letter, but this was not the case here – Miss Barratt had gone to visit her sister because she had just had a baby.

In its appeal to the Supreme Court, the employer firstly argued that it was fundamentally wrong to link the termination of the contract to the employee’s knowledge (or the reasonable opportunity to obtain knowledge) that their employment had ended.  Alternatively, whether the employee had had a reasonable opportunity to learn of their dismissal should be construed very narrowly, assessed by ascertaining whether the employee had in fact an opportunity to learn of the dismissal, rather than whether the employee could be considered to have acted reasonably in failing to take that opportunity.

The Supreme Court did not agree and noted the need to be mindful of the human dimension in considering what is reasonable to expect of someone facing dismissal.  For example, Miss Barratt could not be criticised for failing to give instructions that a letter from her employer should be opened whilst she was away from home.

Secondly, the employer argued that by reason of Miss Barratt’s misconduct she had repudiated the contract and this repudiation had been accepted by the employer.  The employer proposed that, where it had done all that could be reasonably required of it to communicate its decision to accept the employee’s repudiation, termination has occurred.

However, the court emphatically stated that the doctrine of constructive knowledge had no place in an analysis of whether a dismissal has been communicated, as the employee must be informed of the event that triggers the time limit before that period begins to run.  It further highlighted the need to separate common law principles of contract law from the field of employment law.

Practically, this decision clarifies a narrow point and highlights the need for employers to take certain precautions when communicating dismissal decisions.  First and foremost, it is clear that an effective date of termination cannot fall on a date prior to the communication of this decision to the employee (notwithstanding any preferences of the employer’s payroll department for the effective date of termination to fall within a certain pay-run).

The only fail-safe method of ensuring that an employee has received notice of dismissal is to hand over the letter in a face-to-face meeting.  Couriers, emails with “read-receipts”, attempted telephone calls to check receipt and any other imaginable methods of delivering written notice all carry some risk that the employee may not have actually received the letter in person.  If a face-to-face meeting is not practicable, at the very least employers should make enquiries of the employee’s availability and any planned absences at the disciplinary (or other) meeting prior to dismissal.

Hannah Shribman is an associate in Olswang’s employment team.