Gisda Cyf v Barratt - time is of the essence

01/10/2009

By Nick Hobden, Partner and Head of Employment

It is often surprising to see the sorts of issues that the Court of Appeal has to grapple with. Sometimes the disputes relate to matters that you would have thought would be perfectly straight forward. One such example concerns the date on which an employee is taken to have been dismissed.

Following a disciplinary hearing on Tuesday 28 November, Miss Barratt's employer told her that she could expect to receive a letter regarding the outcome of the hearing some 2 days later. A letter of dismissal was subsequently dispatched on time. But because Miss Barratt was away, someone else signed for the letter and Miss Barratt only read it on Monday 4 December.

A preliminary issue arose as to whether Miss Barratt had filed her unfair dismissal claim within the applicable three-month time limit. Because the time limit ran from the date on which the Tribunal concluded that her employment terminated, it was crucial to decide whether dismissal occurred when the dismissal letter was written, posted, delivered to her home address or indeed when she opened the letter and read it.

Both the Employment Tribunal (ET) and the Employment Appeal Tribunbal (EAT) decided that the dismissal only took place when Miss Barratt read the dismissal letter, not before. However the employer appealed to the Court of Appeal, arguing that Miss Barratt's employment had terminated either when it wrote and posted the dismissal letter or when that letter had been delivered. Gisda argued that it was not necessary for the employee to be aware of the dismissal in order for it to take effect. But this argument was rejected by the Court of Appeal, which concluded that the ET and the EAT where right in deciding that a dismissal is effective only when it is communicated to the employee. This decision resulted in Miss Barratt's claim being regarded as within time.

The decision of the Court of Appeal appears to have been heavily influenced by a concern to avoid the prospect of employees unwittingly failing to file their claims within time, because they did not realise that the time limit was already ticking down when they received their dismissal letter. There was a clear consensus that certainty in respect of such matters was highly desirable; the majority of the judges effectively concluded that where uncertainties do arise, it should be the employee who enjoys the benefit of the doubt.

Of course one way of avoiding such uncertainties is to ensure that when you are dismissing employees, you meet with them face to face in order to deliver the news. If that is not practicable, make sure that your letter dismisses them from, say, the second day after posting, presuming there is no postal strike!