Exactly when an individual’s employment terminates can be a key issue; it will affect whether an employee has enough qualifying service to be eligible to pursue a claim of unfair dismissal and whether an employee has lodged an Employment Tribunal claim within the relevant time limits.
In the recent Court of Appeal case of Gisda Cyf v Barratt, Miss Barratt needed to show that she had brought her claim of unfair dismissal within the applicable time limit. This was a case in which the employer had given notice of dismissal by post. Miss Barratt had attended a disciplinary hearing, following which she was sent home and told to expect a decision letter later in the week. The letter, advising that Miss Barratt was dismissed, arrived at Miss Barratt’s home on a Thursday but Miss Barratt was away and she did not open the letter until the following Monday.
If the effective date of termination of Miss Barratt’s employment was the Thursday, her claim was out of time. Conversely, if the effective date of termination was the date that Miss Barratt read the letter, the claim would be in time.
The Employment Tribunal, Employment Appeal Tribunal and Court of Appeal all ruled that the claim had been presented in time; dismissal is effective only when communicated to the employee.
Offering some comfort to employers, the Court of Appeal judgment made clear that there might be a different outcome where an employee deliberately avoids receiving or opening a dismissal letter, but that had not been the facts of this case.
In most cases, the decision to dismiss will be confirmed face to face before being confirmed in writing. However, where that is not the case, - for example, where more time is needed after a dismissal meeting to consider the decision – clients are advised to take reasonable steps to ensure that the dismissal decision has been safely received (and read) by the employee, particularly in cases where it is desired to ensure that a dismissal takes effect before an employee gains sufficient service to be eligible to claim unfair dismissal.