19/11/10

By Martin Brewer, Partner, Mills & Reeve LLP

As should be well known by every employer, the time limit for an employee to bring an unfair dismissal claim is three months from the 'effective date of termination' (EDT) of the employment. But when does the dismissal take place, when exactly is the EDT, if notice of dismissal is sent by letter? Is it when the letter is sent, when it is received, or when it is read?

The question was examined recently by the Supreme Court in the case of Gisda Cyf v Barratt. The Supreme Court ruled that when notice of a summary dismissal is communicated by letter, the time limit for bringing an unfair dismissal claim does not start to run until the employee has actually read the letter, or, crucially, has had a reasonable opportunity to do so. It rejected the argument mounted by the employer that the time would start to run when the letter would have been expected to come to the recipient's attention - i.e. normally the day it arrives in the post.

In this case the employee was away from home on a Thursday when the letter arrived informing her of the outcome of her disciplinary hearing. She had gone to visit her sister who had just given birth. She did not get back home until late on Sunday, and her unfair dismissal claim would have been out of time if the EDT had already occurred by then. The Supreme Court has upheld the employment tribunal's decision that the EDT was the following Monday, when the claimant finally read the letter, as it concluded that she did not have a reasonable opportunity to read it before then.

The importance of the 'reasonable opportunity' point is that an employee cannot claim not to have received notice simply by refusing to open a letter or by failing to go to the post office to collect it if a registered or recorded delivery fails because the employee is not home when it is delivered.

The Supreme Court was at pains to point out that the unfair dismissal regime was there to protect employees. Particularly given the short time limits within which these rights can be enforced, it thought it would be wrong if employees who had behaved reasonably could be penalised due to the application of strict rules of interpretation which might be appropriate in other areas of the law. The same problem can arise even where dismissal is on notice. If a letter is sent giving say three months notice and states that the notice runs from the date of the letter, is that correct if in fact the employee does not read the letter until some time later? In order to avoid the potential difficulty employers therefore need to communicate a decision to dismiss summarily to the employee in person. This will ensure that the start of the three month time limit has been triggered, and where the dismissal is on notice, that the notice runs from the date the employee actually receives and reads the notice.

To contact Martin Brewer, please telephone: 0121 456 8357, or email: martin.brewer@mills-reeve.com. www.mills-reeve.com.