Effectively terminated

Gisda Cyf v Barratt

The effective date of termination (EDT) in section 97(1) of the 1996 Employment Rights Act in relation to a contract terminated without notice is the “date on which the termination takes effect.” In Gisda Cyf v Barratt, the Court of Appeal said that this was when the employee actually read the letter of dismissal and not the date when it arrived at her home.

Basic facts

Ms Barratt attended a disciplinary hearing held on Tuesday 28 November 2006, at the end of which she was told she could expect to receive a letter on Thursday 30 November telling her the outcome of the hearing.

Gisda duly posted a letter of summary dismissal by recorded delivery on Wednesday 29th which was delivered the next day. However, by this stage Ms Barratt was in London visiting her sister who had just had a baby and the letter was signed for by someone else. She did not inquire about the letter while she was away and did not read it until Monday 4 December. She then lodged a claim for unfair dismissal and sex discrimination on 2 March 2007.

The company argued that her claim was out of time because the termination of her contract took effect on 29 November when it wrote and posted the dismissal letter. Alternatively, it argued that termination took effect when Ms Barratt first had a reasonable opportunity to learn of her dismissal. That was before 3 December, because she could have phoned from London to inquire about the letter, which Gisda had told her would arrive at her home address on 30 November.

Tribunal and EAT decisions

The employment tribunal followed the approach laid down in Brown v Southall & Knight. That is, when an employer tells an employee by letter that they have been summarily dismissed, the EDT is the date when they actually read the letter and knew of the decision or, at any rate, had a reasonable opportunity of reading it.

And the EAT agreed, concluding that: "Where a decision to dismiss is communicated by a letter sent to the employee at home, and the employee has neither gone away deliberately to avoid receiving the letter nor avoided opening and reading it, the effective date of termination is when the letter is read by the employee, not when it arrives in the post"

Court of Appeal decision

And the Court of Appeal agreed with both tribunals. It held, by a majority, that the EDT was 4 December 2006 and that Ms Barratt’s claim for unfair dismissal was therefore in time.

It made the following points:

• that the EDT was “a statutory construct specifically designed and defined for the purposes of a legislative scheme of employment rights based on a personal contract
  that the critical triggering act is that of the employer, and the manner and timing is outside the employee’s control
  there is a need for fairness in the dismissal process. “The proposition that an employee may be summarily dismissed and that time may begin to run against the employee before the employee actually knows of the dismissal sits uncomfortably with a personal contract and with the scheme of the legislation that an employee is entitled not to be dismissed unfairly and to have 3 months, and no less, in which to present a complaint of unfair dismissal
  that there must be a good reason to depart from a judgment (Brown) that has been followed for 30 years.