An employee’s effective date of termination (EDT), as defined by Section 97(1)(b) of the Employment Rights Act 1996 (ERA), marks the start of the three-month period within which he or she must bring a claim of unfair dismissal. Whilst in many instances the EDT will be the date on which the period of notice expires, when a contract of employment is terminated without notice, the EDT is the date on which the termination takes effect.
In Gisda Cyf v Barratt, the Supreme Court has ruled that where dismissal without notice is communicated to an employee in a letter sent to his or her home, unless the employee acts in such a way as to deliberately avoid reading the letter, the EDT is when the employee discovers its contents or has a reasonable opportunity to do so, not the date the letter is sent or the date it arrives in the post.
Lauren Barratt worked for Gisda Cyf, a small charitable organisation. On 19 October 2006, she was suspended after it was alleged that she had behaved inappropriately at a private party. On 28 November, a disciplinary hearing was held, at which she was told that she could expect a letter informing her of its outcome by 30 November. Ms Barratt was aware that she was at risk of dismissal. A letter terminating her employment without notice was duly sent by recorded delivery on 29 November but, by the time it arrived, Ms Barratt had left for London to visit her sister, who had recently had a baby. She did not return until the evening of Sunday, 3 December. When the letter arrived on 30 November, it had been signed for by the son of Ms Barratt’s boyfriend. It wasn’t until the morning of Monday 4 December that Ms Barratt enquired whether there had been any post for her in her absence. She was then given the letter and discovered that she had been summarily dismissed for gross misconduct.
Ms Barratt was unsuccessful in an internal appeal against the decision to dismiss her and on 2 March 2007 brought claims of unfair dismissal and sex discrimination against her employer at the Employment Tribunal (ET). The exact date of Ms Barratt’s EDT was crucial in determining whether or not her claims were lodged just within or just outside the three-month period allowed for bringing a claim.
Gisda Cyf argued at the ET that Ms Barratt had a reasonable opportunity to see the letter before 4 December and so the EDT of her employment was more than three months before the presentation of her claim. The Employment judge disagreed. On appeal, Gisda Cyf claimed that the ET had erred in law in considering the reasonableness of Ms Barratt’s conduct rather than whether she had a reasonable opportunity to know of her dismissal before 3 December, and also sought to apply common law contractual principles that a contract could be terminated by one party without the other party being aware of the termination. These arguments were rejected by the Employment Appeal Tribunal and by the Court of Appeal, however.
The Supreme Court held that Section 97 of the ERA is a statutory construct aimed at protecting employees’ rights. An interpretation that promotes those rights, rather than one which is consonant with traditional contract law principles, is to be preferred. The well established rule that an employee is entitled either to be informed, or at least to have the reasonable chance of finding out, that he or she has been dismissed before time begins to run against them for the purpose of bringing an ET claim is ‘firmly anchored to the overall objective of the legislation’.
Citing earlier case law (Brown v Southall and Knight & McMaster v Manchester Airport plc), the Court held that the EDT was the date on which Ms Barratt read the dismissal letter and learned that she had been dismissed. It was not an error of law to take account of her behaviour when deciding whether or not she had a reasonable opportunity to discover the contents of the letter. The ET was entitled to find that she had not deliberately avoided reading the letter and it was not surprising that she would choose to read a letter containing findings made against her, rather than have it read to her over the phone.
At such a time, decisions that are likely to have a profound effect on a person’s future must be made. In the Court’s view, ‘it is entirely reasonable that the time (already short) within which one should have the chance to make those decisions should not be further abbreviated by complications surrounding the receipt of the information that one has in fact been dismissed’. If an employer wishes to be certain that an employee is aware of the dismissal it can ‘resort to the prosaic expedient of informing the employee in a face-to-face interview that he or she has been dismissed’.
Ms Barratt’s claim was therefore presented in time and the appeal was dismissed.