The UK’s Supreme Court in Gisda Cyf v Barratt has ruled that where an employer communicates dismissal without notice by way of a letter, the effective date of termination (‘EDT’) is when the employee reads the letter or has had a reasonable opportunity of reading it, as opposed to when it is posted. This will be the case unless the employee has deliberately failed to open the letter or gone away in order to avoid reading it. This is in contrast with the ‘normal’ contractual position and reaffirms the view that employment law is a special case, recognising the more vulnerable position of employees.
What happened is this case?
Mrs Barratt, the respondent, was suspended from her employment because of allegations that she had behaved inappropriately at a private party. In her disciplinary hearing shortly thereafter she was told to expect to receive a letter on 30 November informing her of the outcome. Mrs Barratt then went away on 30 November as her sister had just given birth. Later that day her boyfriend’s son signed for the letter from Mrs Barratt’s employers. Mrs Barratt had left no instructions for it to be opened or read. Mrs Barratt arrived home late on 3 December and didn’t actually open the letter until 4 December, at which point she discovered she had been summarily dismissed.
The EDT is the date on which an employee’s continuous employment has ended. Establishing the EDT is important because a claim for unfair dismissal must be presented to the Tribunal before the end of three months beginning with the EDT. Mrs Barratt presented a claim for unfair dismissal and sex discrimination on 2 March 2007. If the EDT was when Mrs Barratt’s employers posted the letter, this would mean her claim was out of time because she would only have until the end of February to bring her claim; if it was when she actually read the letter, then her complaint was lodged within time because the time limit was 3 months from when she read the letter i.e. 3 March 2007.
The Employment Tribunal held that both claims were brought within time’ the EDT was when Mrs Barratt opened the letter. This was appealed all the way to the Supreme Court. The employer argued that the Tribunal should have adopted more traditional contractual principles i.e. that termination occurs when communication could be expected ‘in the normal course of things’ to come to the party’s attention. However, the Supreme Court said that employment law is a special case in which employees are in a ‘more vulnerable position than employers’. The rules on time limits should be interpreted in a way favourable to the employee.
The question to be considered was whether the EDT was determined by the existence of the opportunity to open the letter, or was it the date on which the employee had a “reasonable opportunity” to find out what the letter contained? The Court decided that it was the latter: the proper consideration should be whether the employee had a reasonable opportunity to find out what the letter contained.
In assessing whether Mrs Barratt had a reasonable opportunity to discover the contents of the letter, the Court placed great emphasis on her behaviour. The Court reasoned that even though the letter had been signed for and Mrs Barratt’s boyfriend’s son could have opened the letter and told Mrs Barratt of its contents, it was not unreasonable for her to fail to leave instructions to do so. It was also considered perfectly reasonable that Mrs Barratt should want to visit her sister, who had just given birth. In addition the Court considered it reasonable that Mrs Barratt would want to absorb the contents of the letter alone, given its contents, rather than give instructions for someone else to read the letter and tell her of the contents.
One key caveat to the ruling is that the EDT being when the employee opens the letter of termination will not apply where the employee deliberately avoids reading the letter or goes away so as to avoid reading it.
What does this case mean for employers?
This case highlights that in assessing when the EDT in the context of employment rights legislation, employers must be ‘mindful of the human dimension’. Employers looking to terminate an employee by way of letter, rather than say a face to face meeting, must ensure that they consider what can be reasonably expected of an employee facing the prospect of dismissal.
The Tribunals will generally treat the employee favourably due to their more vulnerable position. In which case, unless an employee is shown to have deliberately avoided reading a letter, the EDT will be when the employee reads the letter or has had a reasonable opportunity to discover its contents. It would appear that the employee would have to make a concerted effort not to read such a letter for this rule to be displaced.