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 deliberately avoids reading the letter, the Effective Date of Termination (EDT) is when the employee learns of 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.
Having been suspended from work, Lauren Barratt was sent a letter by recorded delivery terminating her employment without notice. The letter was sent on 29 November 2006 but, by the time it arrived, Ms Barratt had gone to visit her sister, who had recently had a baby. She did not return until the evening of Sunday 3 December. The letter had been signed for in her absence by the son of Ms Barratt’s boyfriend. It wasn’t until the morning of Monday 4 December that she asked whether there was any post for her and read the letter of dismissal.
On 2 March 2007 Ms Barrat brought claims of unfair dismissal and sex discrimination against her employer at the Employment Tribunal (ET). The exact date of her 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 that the claims were out of time. The ET, the Employment Appeal Tribunal and the Court of Appeal all rejected its arguments, however.
The Supreme Court dealt with the arguments put forward as follows:
- The EDT (as defined by Section 97(1)(b) of the Employment Rights Act 1996) is a statutory construct. The legislation seeks to protect an employee’s rights, so an interpretation that promotes those rights, rather than one which is consonant with traditional contract law principles, is to be preferred. 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 for the purpose of bringing an ET claim;
- Following earlier case law (Brown v Southall and Knight and McMaster v Manchester Airport plc), where dismissal is communicated to an employee by letter, the contract of employment does not terminate until the employee has actually read the letter or has had a reasonable opportunity to do so. It is not enough to establish that the employer had decided to dismiss a person or had posted a letter saying so. If, however, the employee deliberately did not open the letter, or went away to avoid reading it, he or she might well be debarred from saying that notice of dismissal had not been given. It was not, therefore, an error of law to take account of Ms Barratt’s 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 such a letter in private;
- When someone is dismissed, decisions must be made that are likely to have a profound effect on that person’s future and ‘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’.
Since Ms Barratt’s EDT was the date on which she read her dismissal letter, her claim was presented in time.