Although employees usually know exactly when they've been dismissed, there are times when that's not the case. Just look at what happened in Rai v Somerfield Stores Ltd (IRLR 2004, 124), in which the Employment Appeal Tribunal (EAT) said that a letter from the employer telling Mr Rai to come back to work by a certain date did amount to a dismissal, but not a dismissal with notice.
What had happened to Mr Rai?
Mr Rai had been employed by Somerfield as a home delivery driver for about a year, but was demoted to the position of store assistant in June 2000. After that, he failed to turn up to work again. He didn't tell his employers why he wasn't at work and he made no effort to communicate with them as to when he might return.
Not surprisingly, Somerfield decided it had to do something to resolve the situation. It wrote to him a number of times and finally got him to a meeting on 8 March 2001. Mr Rai was told that there was a job for him as a dairy assistant and that he should come back to work on 19 March.
But he didn't show and Somerfield wrote to him saying that if he didn't come back by 9 April, he would be deemed to have resigned on that day. Mr Rai didn't show up - again - and his employers wrote to him on 14 May saying that as they had not heard from him, they were operating on the basis that his employment had ended on that day.
What was Mr Rai's claim?
Unbeknown to them, however, Mr Rai had made a claim on 6 April to a tribunal for unfair dismissal and unlawful deduction from wages.
The tribunal decided that when he was demoted in June 2000, his employment had terminated and that he'd been re-employed as a store assistant. That being so, his originating application was outside the three month time limit, and there was no good reason why he hadn't been able to present his claim in that period (Employment Rights Act, section 112a).
It also said that his employment as a store assistant had come to an end on 9 April 2001. Mr Rai had, therefore, presented his application three days too early and the tribunal dismissed his complaints.
What was the view of the appeal tribunal?
This time round, Mr Rai argued that the letter he'd received from Somerfield telling him to come back by 9 April amounted to a dismissal with notice. Since his application had been presented after the notice was given, but before the termination date (Employment Rights Act, section 111(3)), the EAT could consider his claim.
But according to the EAT, there is no statutory definition of either notice or dismissal with notice. Nor are there any decisions by the appeal tribunal (or any higher court) as to what constitutes a notice or dismissal with notice for the purposes of section 111(3).
The EAT therefore had to resolve this 'greenfield' point itself. That is, whether the termination of Mr Rai's employment constituted a dismissal with notice within the meaning of the legislation.
And it decided that it didn't. First of all, it said the tribunal was right that his employment had terminated on 9 April when he didn't turn up for work, and that it could not therefore consider his application which was presented three days before that.
It also said that the letter did not amount to a dismissal with notice. Telling someone that their employment will be terminated if they don't come to work (which only they can decide whether to do or not) does not constitute notice. It is simply telling them that if they don't show up, they won't have a job from that date onwards.