Gisda Cyf v Barratt

For a summary dismissal communicated by letter, the statutory effective date of termination is generally when the employee reads the letter and knows of the dismissal, or has a reasonable opportunity to read it. Deliberate avoidance of the letter may prevent reliance on the later date of actual reading. Posting or delivery to the employee’s home address does not, by itself, start the limitation period. The statutory concept is interpreted within the employee-protection scheme and is not controlled by general contractual rules under which termination may precede actual communication. The appeal was dismissed and the unfair-dismissal claim was held to be in time.

Following a disciplinary hearing, Gisda Cyf sent Miss Lauren Barratt a recorded-delivery letter summarily dismissing her. The letter was delivered to her home on 30 November 2006 while she was away, and she read it on 4 December. She presented an unfair-dismissal complaint on 2 March 2007.

The Employment Tribunal held that the effective date of termination was 4 December. The Employment Appeal Tribunal upheld that conclusion in UKEAT/0173/08/ZT. Gisda appealed, arguing that termination occurred when the letter was posted or delivered, irrespective of Barratt’s knowledge. The central issue was when termination took effect for the purposes of the statutory unfair-dismissal time limit.

Majority: Mummery LJ, with whom Sir Paul Kennedy agreed. The appeal was dismissed. The Employment Tribunal had made no error of law, and the unfair-dismissal complaint was presented in time.

1. Statutory construction. The effective date of termination under section 97(1)(b) of the Employment Rights Act 1996 is a statutory construct. Its meaning is not controlled by general contractual analysis. The provision must be construed in the context of employment protection and the employee’s statutory right to three months in which to present an unfair-dismissal complaint.
2. Dismissal by letter. Where an employer chooses to communicate summary dismissal by letter, the effective date is generally when the employee reads the letter and knows of the dismissal, or when the employee has a reasonable opportunity to read it. Posting or delivery to the home address is insufficient by itself. An employee who deliberately avoids receiving or reading the letter may be treated differently.
3. Application. The Tribunal was entitled to find that Barratt had not gone away to avoid the letter and did not have a reasonable opportunity to read it before 4 December. The possibility of telephoning home did not make that conclusion erroneous in law. Her complaint therefore fell within the period prescribed by section 111(2)(a).
4. Settled construction. The Court declined to overturn the established approach in [1980] ICR 617 and [1998] IRLR 112. That approach had been accepted for nearly three decades without demonstrated injustice, practical difficulty or legislative correction.

Dissent: Lloyd LJ. Lloyd LJ would have allowed the appeal. In his view, the employment contract ended when the dismissal letter was delivered to the employee’s correct address, regardless of whether she was present or had read it. He considered the earlier EAT decisions wrongly decided on their facts. The majority view prevailed.

1. Court of Appeal (Civil Division) dismissed Gisda Cyf’s appeal. Mummery LJ gave the leading judgment and Sir Paul Kennedy agreed; Lloyd LJ dissented.
2. Employment Appeal Tribunal dismissed the employer’s appeal in UKEAT/0173/08/ZT, holding that the effective date was when the employee read the dismissal letter.
3. Employment Tribunal held that the effective date was 4 December 2006 and that the unfair-dismissal complaint presented on 2 March 2007 was in time.