Establishing when a dismissal takes effect is important when an employer is seeking to dismiss an employee before they have one year's service, so that they do not have the requisite length of service to bring an unfair dismissal claim. It is also important in determining when the time limit for bringing tribunal claims expires, when salary and benefits stop or when the time in which to appeal expires.

The Supreme Court recently held in Gisda Cyf v Barratt that when an employer sends a dismissal letter to an employee at home, and the employee has not:

i. avoided receiving the letter, or

ii. avoided opening and reading it,

the effective date of termination ("EDT") is when the letter is read by the employee.

The background

On 19 October 2006, Ms Barratt who was employed by Gisda Cyf (a Welsh charity for the homeless) was suspended after allegations that she behaved inappropriately at a private party. At the end of a disciplinary hearing, which was held on 28 November, Ms Barratt was told that she could expect to receive a letter regarding the outcome of the hearing on 30 November. Before the letter arrived, Ms Barratt went to London to help her sister who had just had a baby. Gisda Cyf sent a dismissal letter to Ms Barratt's home by recorded delivery. It was signed for by Ms Barratt's boyfriend's son. On 4 December, the morning after she had returned home, Ms Barratt opened the letter to discover that she had been summarily dismissed for gross misconduct. Ms Barratt's appeal against this decision was dismissed and, on 2 March 2007, she lodged unfair dismissal and sex discrimination claims in the tribunal.

If the EDT was 4 December 2006, Ms Barratt's claims were presented within the statutory three month time limit for bringing her claims. If the EDT was earlier, they were out of time. The question was therefore whether the EDT was:

i. the date the dismissal letter was written and posted (29 November);

ii. the date the dismissal letter was delivered to her home (30 November); or

iii. the date she opened and read the dismissal letter (4 December)?

The employment tribunal, EAT and Court of Appeal (by a two-to-one majority) held that it was the date she opened and read the letter. Ms Barratt's claims had therefore been brought in time.

The Supreme Court's decision

The Supreme Court unanimously agreed with these decisions. It stated that:

"In examining the question whether Ms Barratt had the opportunity to learn of the contents of the letter, should the focus be on the reasonableness of her behaviour in failing to avail of the chance to discover what it contained, or should it be on the existence of the opportunity to do so? The Employment Judge, the EAT and all the members of the Court of Appeal were unanimous in the view that to include consideration of the behaviour of the respondent in an assessment of whether she had a reasonable opportunity to find out what the letter contained was not an error of law. We agree."

The court added that, given the impact of dismissal on a person's life, underlying the court's reasoning was:

"... the notion that it would be unfair for time to begin to run against an employee in relation to his or her unfair dismissal complaint until the employee knows – or, at least, has a reasonable chance to find out – that he or she has been dismissed."

The implications

To avoid the situation which Gisda Cyf was faced with, employers should ideally communicate dismissals by informing employees of this face-to-face and handing them their dismissal letter. However, that is not always possible, particularly where the employee has been suspended. To avoid the risk of an inference that the decision is predetermined, which arises where the dismissal letter is given to the employee at the disciplinary hearing, the letter should be sent to the employee. It therefore makes sense to establish the employee's whereabouts to ensure that they are able to read the letter straightaway.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.