On Wednesday, the Supreme Court handed down its judgment in Gisda Cyf v. Barratt, dismissing the appeal from the Court of Appeal's decision
Section 97(1) of the Employment Rights Act 1996 defines the effective date of termination (EDT) as follows:
"(a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, [it] means the date on which the notice expires,
(b) in relation to an employee whose contract is terminated without notice, [it] means the date on which the termination takes effect."
Establishing the EDT is important for determining when an employee can bring a claim for unfair dismissal. An employee typically has three months from the EDT in which to bring a claim
Miss Barratt attended a disciplinary hearing on Tuesday 28 November 2006. She was sent home and told to expect a letter about possible dismissal that Thursday. The dismissal letter arrived by recorded delivery on Thursday 30 November 2006 and was signed for by someone other than Miss Barratt, who was away. Miss Barratt phoned home while she was away, but did not enquire about the arrival of the letter. She returned home on Sunday night and opened the letter the next day, Monday 4 December 2006.
When Miss Barratt brought a claim for unfair dismissal, a preliminary issue arose about whether the tribunal had jurisdiction to hear her claim as it might not have been brought within the three-month time limit. Her claim would only be in time if the EDT was when she opened the letter and read of her dismissal. If the EDT was some earlier date, such as when the letter was written, posted or delivered to her home address, her claim would be out of time.
The Supreme Court has confirmed the EDT was 4 December 2006, i.e. when she actually read the letter. It held that Miss Barratt should not be criticised for wanting the letter to remain at home unopened until she returned, as its contents were private. As she neither knew of the decision until 4 December, nor had deliberately failed to open the letter or gone away to avoid reading it, then the EDT would be the date she learned of the decision to dismiss. The Supreme Court stated that, on policy grounds, it was desirable to interpret the time limit legislation in a way favourable to the employee, and that strict contractual laws concerning termination of contracts should not displace the statutory framework. Therefore Miss Barratt's claim was presented within time.
This case demonstrates the potential pitfalls of dismissing by post. In practice, therefore, it is advisable to ensure that, as far as possible, dismissals are communicated in a manner that does not leave any ambiguity about the EDT. The most obvious way to achieve this is for the dismissal to be carried out face to face, with confirmation being provided in writing afterwards. The Supreme Court has confirmed that it will generally be the employer who bears the risk of dismissing by post, rather than the employee.