What is the effective date of termination (EDT) of an instant dismissal by letter? This longstanding issue arose clearly on the facts of this case where a letter of dismissal was sent to the (suspended) employee on 29 November and delivered to her on 30 November. However, she had gone away to see her sister (who had just had a baby) and did not return until 3 December. Even then, she did not actually receive and read it until 4 December when her boyfriend’s son found it in his homework. By the time that she had been through an internal appeal, she did not lodge her claim for unfair dismissal until 2 March of the following year. Thus, the dates of 29 and 30 November were out of time but the date of 4 December was within time. The tribunal, the EAT and the Court of Appeal allowed her claim to proceed, and that decision has now been upheld by the Supreme Court.
The case revolved around two issues, one of law and one of fact. The issue of law was the correct test to apply, and here the Supreme Court upheld the old law (from the venerable cases of Brown v Southall & Knight [1980] IRLR 130, EAT and McMaster v Manchester Airport [1998] IRLR 112, EAT) that the EDT is when the employee receives and reads the letter of termination, or at least when he or she had a reasonable opportunity to do so. It is not the employer’s preferred date of when the letter was posted or, failing that, when delivered. That important holding then opened up the question of fact – how do you apply the (secondary) test of when the employee had a reasonable opportunity to read the letter? A strict approach (i.e. when it was technically feasible) would have ruled out the claimant here because she could have stayed at home and/or left instructions to have the letter opened and read to her by phone. However the Supreme Court took a relatively indulgent approach. They held that the test is to be applied in effect subjectively to the claimant, in his or her particular circumstances; a tribunal needs to be “mindful of the human dimension in considering what is or is not reasonable to expect of someone facing the prospect of dismissal from employment. To concentrate exclusively on what is practically feasible may compromise the concept of what can realistically be expected” (at para 30). Here, it was reasonable for the claimant to go to see her sister and not to wish anyone else to open the letter potentially dismissing her. The judgment accepts that this approach may introduce a level of uncertainty (especially from the employer’s point of view) but considers that that is outweighed by the factor of seeking to apply the employment protection legislation to achieve its aim in relation to the dismissed employee. Moreover, it is pointed out in para 43 that “… an employer who wants to be certain that his employee is aware of the dismissal can revert to the prosaic expedient of informing the employee in a face-to-face interview that he or she has been dismissed”.
The decision not just settles the matter (in line with longstanding authority) but is also notable on a more general level for its overall pro-employee tenor, its acceptance that the three months limit is “not an unduly generous time” and its insistence that statutory measures for the protection of employees are not to be narrowed by the adoption of a more purely contractual approach to their interpretation.
Gisda Cyf v Barratt [2010] UKSC 41
“Harvey on Industrial Relations and Employment Law Bulletin No. 388”: 22.11.2010
