Lauren Barratt was suspended on 19 October 2006, pending investigation into conduct that had been witnessed by one of her employer’s service users at a private party in Blenau Ffestiniog, and which was allegedly inappropriate. A disciplinary hearing was held on 28 November 2006, at the end of which she was informed that she would receive a letter on 30 November 2006 setting out the outcome.
The employer posted a letter dismissing Barratt summarily on 29 November by recorded delivery. The letter was signed for the next day by a family member, but Barratt herself was not in, as she had already left to visit her sister in London, who had recently had a baby. Although she did phone home while in London, Barratt did not ask about the letter, only doing so on her return on Monday 4 December, when she read the contents.
She claimed unfair dismissal and sex discrimination. If the effective date of termination (EDT) had been when she read the letter, on 4 December, the claim would have to have been lodged within the normal three-month time limit. But, if the EDT was earlier – for example, the date on which the letter had been sent – the date it had been delivered or even (as the employer argued) on a date by which she should have inquired about its delivery, then it would not have been submitted in time – leaving aside arguments about the tribunal’s discretion to allow such claims.
The Court of Appeal upheld the decision of the employment tribunal and the Employment Appeal Tribunal (EAT), that for the purposes of section 97(1) (b) of the Employment Rights Act 1996 (which defines the EDT in circumstances of termination without notice), the dismissal has to be communicated. That is, the letter of dismissal must actually have been read by the employee in order to become effective, or at least the employee must have had a reasonable opportunity to have read it.
In doing so, the court followed a well-established principle, set out in Brown v Southall and Knight 1980 ICR 617. It might have been different, as in Brown, if Barratt had gone away from home deliberately to avoid receiving the letter of dismissal, or if she had avoided opening it.
The court also agreed that the tribunal had not been wrong to conclude that Barratt did not have a reasonable opportunity of reading the letter earlier than Monday 4 December. Although she had phoned home, she was not obliged to ask about the contents of the letter.
This case is a useful illustration of the uncertainty that can be caused when dismissing by post. Often this will not be an issue, as many dismissals will be communicated face-to-face. However, where the communication is by post, there is room for ambiguity as to the EDT, and it will generally be the employer who bears the risk of this, rather than the employee. It would be unpalatable for an employee to be dismissed, starting time running on the three-month limit for bringing a claim, without him/her actually knowing about it.
Of course, the employer could also say it needs certainty as to the EDT, so that it knows when to stop pay, benefits etc, a point made in a dissenting judgment.
The EDT can also be of crucial importance if, for instance, the employee is close to attaining the one-year’s service required to bring an unfair dismissal claim – a few days’ delay could make the difference between having and not having the right.
The practical answer is therefore for employers to ensure that, where possible, dismissals are communicated in a manner that does not leave room for doubt as to the EDT. The obvious way to achieve this is for the dismissal to be carried out face-to-face. It is then best practice (and recommended by the Guidance to the Acas Code on Discipline and Grievances at Work) to confirm in writing in any event.
Bob Cordan, partner, Thomas Eggar