Gisda Cyf v Barratt

The Supreme Court considered the meaning of the statutory phrase "effective date of termination" in section 97(1) of the Employment Rights Act 1996 for a dismissal without notice. The court held that, for the purposes of statutory time limits for unfair dismissal (section 111(2)) and interim relief (section 128), the effective date of termination is not to be fixed by ordinary contract law or by the doctrine of constructive knowledge but by reference to when the employee knew of the dismissal or had a reasonable opportunity of discovering it. The court rejected the appellant’s argument that delivery of a dismissal letter to the employee’s address (or posting of such a letter in accordance with ordinary contract principles) should be the date on which time begins to run.

Key statutory provisions considered were section 97(1)(b), section 111(2) and section 128 of the Employment Rights Act 1996. The court endorsed earlier EAT decisions (notably Brown v Southall & Knight and McMaster v Manchester Airport plc) and declined to treat conventional contract law principles as determinative of the statutory test. Practical consequences, including protection of employees’ access to interim relief and the fairness of the statutory three-month limit, underpinned the decision. The appeal was dismissed.

This was an appeal against an Employment Tribunal and Court of Appeal rulings on whether a complaint of unfair dismissal was presented in time. The respondent, Ms Barratt, had been suspended and informed by letter of summary dismissal while she was away from home; she did not read the letter until some days after delivery and lodged tribunal proceedings within three months of the date she read the letter but arguably outside three months of the date the employer posted or the letter was delivered.

The claim included unfair dismissal and sex discrimination. The Employment Tribunal (Employment Judge Hoult) found the claims were in time and, in any event, would not have extended time for the unfair dismissal claim. The employers appealed. The Employment Appeal Tribunal followed authorities that the effective date of termination is when the employee knows of the dismissal or has a reasonable opportunity to discover it. The Court of Appeal (by majority) dismissed the employers’ appeal, rejecting a submission that ordinary contract law (or constructive knowledge as in The Brimnes) should determine the statutory date.

The principal issues framed by the Supreme Court were:

• When does a termination without notice "take effect" for the purposes of section 97(1)(b) — at the employer’s decision, on posting, on delivery of a letter, on the employee reading the letter, or when the employee has a reasonable opportunity to learn of the dismissal?
• Whether the statutory regime should follow ordinary contract law principles or be interpreted primarily to protect employees’ statutory rights.

The court reasoned that the statutory wording and purpose of the Employment Rights Act should be read with the protective intent of the legislation in mind. It concluded that the doctrine of constructive knowledge has no place in fixing the effective date of termination for these statutory purposes and that time begins to run only when the employee actually knows of the dismissal or has a reasonable opportunity to find out. The court emphasised practical consequences, notably the availability of interim relief under section 128, and the statutory policy of giving employees a proper opportunity to bring claims within the statutory period. On those grounds the appeal was dismissed.

Appeal dismissed. The Supreme Court held that, for a dismissal without notice under section 97(1)(b) of the Employment Rights Act 1996, the effective date of termination is the date on which the employee knew of the dismissal or had a reasonable opportunity to discover it. The Court rejected the appellant’s contractual analysis (that delivery or posting alone should fix the date) and rejected the use of constructive knowledge; the decision was motivated by the statutory purpose of protecting employees’ rights and by practical consequences for remedies such as interim relief under section 128.

On appeal from the Court of Appeal [2009] EWCA Civ 648. At first instance an Employment Tribunal (Employment Judge J C Hoult) held the claims were in time. The Employment Appeal Tribunal (judgment delivered by Bean J) rejected the employer’s contention and upheld the approach that time runs from when the employee knew of the dismissal or had a reasonable opportunity to know. The Court of Appeal, by majority, dismissed the employers’ appeal in [2009] IRLR 933 (Mummery LJ and Sir Paul Kennedy; Lloyd LJ dissenting). The matter was then heard by the United Kingdom Supreme Court which dismissed the appeal.