The case of Gisda Cyf v Barratt, to be heard by the Supreme Court on 19 July 2010, is concerned with the issue of dismissal and the circumstances in which an employee is informed of the end of their employment i.e. their effective date of termination. It is crucial to identify the effective termination date as it determines whether claims can be brought to an Employment Tribunal (and validly accepted).

The hearing, chaired by Lords Hope, Saville, Walker, Hale and Kerr, will be the employer Gisda Cyf’s last attempt in the domestic courts to overturn the unanimous judgments of the Court of Appeal, the Employment Appeal Tribunal and the Employment Tribunal. Each of these have held that the effective date of termination is the date on which termination is communicated to the employee, a principle which was established in Brown v Southall and Knight [1980].  An employee then has three months from the effective date of termination to lodge a claim for unfair dismissal with the Employment Tribunal, as outlined in s 97(1) of the Employment Rights Act 1996 (the “Act”).  

In the present case, Miss Barratt’s dismissal was communicated to her by letter sent by Gisda Cyf on 29 November 2006, received by Miss Barratt on 30 November 2006, and read by her on 4 December 2006.  Miss Barratt brought her claim for unfair dismissal and sex discrimination on 2 March 2007. Gisda Cyf contended that this was outside the three month time limit, and as a result the Tribunal did not have jurisdiction to hear the claim. However, the Tribunal, Employment Appeal Tribunal and Court of Appeal have all found that the effective date of termination was 4 December 2006, when she read the letter, and so the claim had been presented in time.

On the facts, it appeared that the Respondent had not deliberately avoided receiving or opening the letter.  She had attended a disciplinary hearing on 28 November 2006, and was told that a letter would be coming.  However, from 29 November to 3 December she was away from home visiting a relative, and whilst she did call home, she did not enquire about the letter.  The Appellant argued that the Respondent’s employment contract was terminated as soon as the employer had accepted that the employee had breached her contract through misconduct and so termination occurred with the posting of the letter. The Appellant also submitted that the Respondent had had sufficient time to bring a claim and that she should have made enquiries about the outcome letter whilst away.

The Court of Appeal [2009] EWCA Civ 648 held that the Act needed to be interpreted purposively and that to ensure fairness of the dismissal process an employee should not be allowed to be summarily dismissed and have time run against them before they know they have been dismissed.  It was also found that although the Act can lend itself to contractual analysis, it does not follow that the Act is controlled by contractual considerations, as “effective date of termination” is not a term of contract law but more a term specifically designed for employment rights. The provisions of the CPRs relating to deemed service to do not apply to communications with employees to their home address and as a result, if a letter is sent informing an employee of their dismissal, the dismissal will be seen to be communicated to them on the date at which the letter is read or when the employee has had a reasonable opportunity to read it, not the date when a letter of dismissal is written, posted or received by an employee.  

Whilst the question in this appeal is thus a narrow one, it has already produced a dissenting opinion below.   In the Court of Appeal, Lord Justice Lloyd disagreed with Lord Justices Mummery and Sir Paul Kennedy, holding that the effective date of termination should be the date on which the letter is delivered to the home, subject to proof of delivery, otherwise a degree of uncertainty arises as to when the letter could be read.

It will be interesting to see whether the Supreme Court follows the Lloyd LJ approach, which gives greater certainty to employers whilst placing the onus on employees to file their claims promptly, or whether it sides with the majority in the Court of Appeal (and the Tribunals below) in finding that effectively it is the employer who bears the risk for any ambiguity arising from effective date of termination.