Gisda Cyf v Barratt

The Court of Appeal considered the meaning of the statutory phrase "the effective date of termination" in section 97(1)(b) of the Employment Rights Act 1996 for the purpose of the three month time limit to present a complaint of unfair dismissal under section 111. The majority held that, where an employer notifies summary dismissal by letter sent to the employee's home, the effective date of termination is normally the date on which the employee actually read the dismissal (or had a reasonable opportunity to do so), not the date when the employer decided to dismiss or when the letter was posted or delivered to the address. The court relied on earlier EAT authority (notably Brown v Southall & Knight and McMaster v Manchester Airport plc) and on the statutory context which protects employees by ensuring the three month period runs from the time the employee knows of the dismissal. The appeal was dismissed because there was no error of law in the ET and EAT conclusions that Miss Barratt read the dismissal letter on 4 December 2006 and that her unfair dismissal claim, presented on 2 March 2007, was in time.

Background and parties:

• Claimant: Miss Lauren Barratt; Respondent/appellant: Gisda Cyf (employer).
• Gisda dismissed Miss Barratt for alleged gross misconduct after a disciplinary hearing on 28 November 2006 and sent a recorded delivery letter notifying summary dismissal on 29 November 2006 which was delivered to her address on 30 November 2006 but was not opened and read by her until 4 December 2006.

Procedural history: Employment Tribunal (pre-review hearing judgment 8 December 2007) and Employment Appeal Tribunal (Bean J, 25 July 2008) held the effective date of termination was 4 December 2006 and that the unfair dismissal complaint presented 2 March 2007 was in time. Gisda appealed to the Court of Appeal.

Nature of claim / relief sought: Determination of the effective date of termination for limitation purposes and thereby whether the ET had jurisdiction to hear Miss Barratt's unfair dismissal claim.

Issues framed:

• Whether the effective date of termination under section 97(1)(b) ERA 1996 is the date the employer performed the act terminating the contract (for example when it decided to accept repudiation, posted or delivered the dismissal letter), or the date the employee read the dismissal or had a reasonable opportunity to read it.
• Whether earlier EAT authorities holding that the date is the date of actual knowledge should be followed or overruled.

Court’s reasoning:

1. The court emphasised that "effective date of termination" is a statutory concept within a statutory scheme that gives employees a three month period to bring unfair dismissal claims, and therefore construction should reflect that protective purpose.
2. The ET’s and EAT’s approach (Brown and McMaster) that the date is normally when the employee knows of the dismissal or had a reasonable opportunity to read the dismissal letter was held to be a clear, workable and long-established rule; the majority saw no sufficient reason to depart from it.
3. The court rejected the submission that contractual analysis alone (acceptance of repudiation or an unequivocal employer act such as posting a letter or stopping pay) controlled the statutory construction; the statutory context, fairness and practical certainty favoured the employee-knowledge approach in letters-notify cases.
4. The majority concluded there was no error of law below: on the facts the ET was entitled to find Miss Barratt had no reasonable opportunity to read the letter until 4 December and the claim was therefore in time.

Note: One judge (Lloyd LJ) would have allowed the appeal and held the effective date of termination was the date of delivery at the employee’s address (30 November 2006), but the majority dismissed the appeal.

Appeal dismissed. The majority held that, for a dismissal notified by letter to an employee's home, the "effective date of termination" under section 97(1)(b) ERA 1996 is generally the date when the employee actually read the letter or had a reasonable opportunity to do so; the ET and EAT were entitled to find the effective date was 4 December 2006 and that the unfair dismissal claim presented on 2 March 2007 was in time.

Employment Tribunal judgment (pre-review hearing) 8 December 2007; Employment Appeal Tribunal (Bean J) judgment 25 July 2008 (UKEAT/0173/08/ZT) allowing the ET decision; appeal to the Court of Appeal [2009] EWCA Civ 648 (this judgment).