Gisda Cyf v Barratt

For a summary dismissal, the effective date of termination under section 97(1)(b) of the Employment Rights Act 1996 is when the employee reads the dismissal communication or has a reasonable opportunity to learn of its contents. Delivery, dispatch or the employer’s decision alone does not start time.

Whether the employee had a reasonable opportunity is assessed realistically. The tribunal may consider practical opportunity, the employee’s conduct and the reasons for any delay. Constructive knowledge derived from ordinary contract law does not govern. The provision forms part of a statutory scheme protecting employees, and must be construed in that setting. This ensures that the statutory periods for unfair dismissal proceedings and interim relief do not expire or become abbreviated before the employee can know that dismissal has occurred.

The respondent employee was summarily dismissed for gross misconduct by a recorded-delivery letter sent to her home. The letter arrived while she was visiting her sister. It was accepted by another household member but remained unopened until her return. She read it on 4 December 2006 and presented unfair dismissal and sex discrimination complaints on 2 March 2007.

The Employment Tribunal held that she had no reasonable opportunity to read the letter before 4 December and that both complaints were in time. The Employment Appeal Tribunal dismissed the employer’s appeal. The Court of Appeal, by a majority, also dismissed the appeal: [2009] EWCA Civ 648.

The central issue before the Supreme Court was when a dismissal without notice takes effect under section 97(1)(b) of the Employment Rights Act 1996. A subsidiary issue concerned whether reasonable opportunity depended solely on practical feasibility or also permitted consideration of the employee’s conduct and reasons.

1. The appeal was dismissed. Lord Kerr delivered the judgment of the Court. For a dismissal communicated by letter, the effective date of termination under section 97(1)(b) of the Employment Rights Act 1996 occurs when the employee reads the letter or has a reasonable opportunity to learn of its contents. The employer’s decision, dispatch of the letter or its delivery to the employee’s address is insufficient by itself.

2. The assessment of reasonable opportunity is not confined to asking what was practically possible. A tribunal may consider the employee’s actions and omissions and the reasons why the contents were not discovered. That approach respects the human dimension of dismissal and what can realistically be expected. Although it was possible for the respondent to arrange for the letter to be read to her, her wish to read it personally was relevant. She had not gone away to avoid the communication, and the tribunal committed no error of law in finding that her reasonable opportunity arose on 4 December.

3. Section 97 creates a statutory concept and is not governed by the ordinary contractual rules for terminating a contract. The statutory unfair dismissal regime deliberately provides protection beyond the common law. Employees are generally the more vulnerable party, and the provision must principally be construed by reference to the protection of their rights. The Court therefore rejected constructive or presumed knowledge as a basis for starting time. It approved the approaches in Brown v Southall & Knight and McMaster v Manchester Airport plc.

4. The contractual cases relied upon by the employer did not establish that common law principles dictate the scope of statutory employment rights. Such principles may assist only where they precisely reflect the statutory protection. The separation between contractual and statutory rights was supported by Johnson v Unisys Ltd [2001] UKHL 13 and Redbridge London Borough Council v Fishman.

5. The construction adopted also preserved the practical operation of section 128. An application for interim relief must be presented within seven days of the effective date of termination, with no power to extend time. Parliament could not have intended that this important remedy might expire before an employee knew of the dismissal. The respondent’s unfair dismissal complaint was therefore presented within the three-month period prescribed by section 111(2).

1. United Kingdom Supreme Court: Dismissed the employer’s appeal and affirmed that the unfair dismissal complaint was in time: [2010] UKSC 41 .
2. Court of Appeal: By a majority, dismissed the employer’s appeal; Mummery LJ and Sir Paul Kennedy formed the majority, and Lloyd LJ dissented: [2009] EWCA Civ 648 ; [2009] IRLR 933.
3. Employment Appeal Tribunal: Bean J dismissed the employer’s appeal and rejected the proposed analogy with commercial receipt-of-notice principles.
4. Employment Tribunal: Held that the employee had no reasonable opportunity to read the dismissal letter until 4 December 2006 and that her complaints were in time.