Supreme Court Confirms That Dismissal Only Took Effect When Employee Read Letter

In the recent case of Gisda Cyf v Barratt, the Supreme Court has confirmed that where an employee is summarily dismissal by letter, the effective date of termination (the EDT) is the date when the employee actually reads the letter, or has a reasonable opportunity to do so, and not the date it is written, posted or delivered. For employers, the message of the case is that wherever possible, it is better to dismiss face-to-face and avoid any argument as to the date on which the three-month time-limit begins. For employees, the lesson is that you should not delay bringing a claim until the last minute. Persuading an Employment Tribunal to extend the three-month time-limit is always an uphill struggle.

In the Barratt case, B was suspended from her employment with GC for allegedly behaving inappropriately at a private party. At the end of a disciplinary hearing held on 28th November 2006, B was told to expect to receive a letter on Thursday, 30th November, informing her of the outcome of the hearing. However, on that day B travelled to London to see her sister who had just had a baby. Later on the same day a recorded delivery letter arrived for her. It was signed for by the son of B’s boyfriend. B did not return home until late on the Sunday evening, 3 December, and did not learn of the letter until the next morning when she asked whether any post had arrived. Her boyfriend's son then remembered the letter and found it with his homework. On 2nd March 2007, B began proceedings for unfair dismissal and sex discrimination.

GC argued that B’s claim was brought late, after the 3-month time-limit, on the basis that the EDT was the date on which B received the letter at her home, not when she actually read it. This argument was rejected in turn by the Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal.

GC’s final appeal has now been rejected by the Supreme Court. In effect, the Supreme Court has come down on the side of fairness rather than certainty. We can now expect to see litigation around the “reasonable opportunity” issue. The result in the Barratt case may well have been different if, for example, it had been shown that B had gone away in a deliberate attempt to avoid opening the letter.

If you would like to know more, please contact Gareth Pobjoy or Nick Crook.

Filed: 02/11/2010 15:37:00