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When does a dismissal take effect?

24th October 2010
Ascertaining the date on which a dismissal takes effect is crucial to the calculation of the time limit for commencing a claim of unfair dismissal. The Supreme Court has just given an important ruling on how to determine the date of dismissal in many cases.
The time limit for presenting a claim of unfair dismissal is short, just three months from the date of dismissal (the actual date of the dismissal being counted as the first day in the three months). While three months may to many seem a long time, it is a remarkably short time limit when compared to other legal time limits, such as three years for a personal injury claim, or six years for most other breaches of contract or claims of negligence. In addition, the first thing going through the mind of a person that has been dismissed is how they are going to get a new job to pay for food, accommodation and day-to-day living costs. This means that  the three months can pass very quickly, and a large proportion of claims of unfair dismissal are presented to the Employment Tribunal in the last few days of the three months time limit.

The date of dismissal will be obvious when the employer tells the employee of the dismissal face to face. However, the datge of dismissal may not be so obvious when an employer notifies the employee of dismissal in writing, particularly if that dismissal has been sent to the employee's home address through the post.

The case of Gisda Cyf v Barratt concerned a dismissal letter sent through the post, by recorded delivery, to the employee, Ms Barratt. Ms Barratt was not at home when the letter arrived. She had travelled to be with her sister and new baby. The letter had been received  by the son of Ms Barratt's partner. The letter was not opened on receipt. Ms Barratt reutrned home a few days later. SHe subsequently issued her claim of unfair dismissal within 3 months of her return, when she read the letter. However, that date was more than three months from the date the letter had arrived at her home. Her former employer claimed that her application to the Employment Tribunal had been made out of time, and so could not proceed. The Employment Tribunal rejected that argument. On appeal that argument was also rejected by the Employment Appeasl Tribunal and Court of Appeal. That argument has now also been rejected by the Supreme Court.

The Supreme Court has ruled that the date on which the dismissal took effect was the day on which Ms Barratt first read the dismissal letter, as opposed to the date the letter was sent or received. The Court found that she had not deliberately tried to avoid reading the dismissal letter, nor had she acted unreasonablely in not having the letter read to her by her parnter's son when it was received, as it was private.

There are clear practical concerns arising from this judgment. How can an employer be sure of the date that the time limit starts to run? Does the employer have to continue paying the employee until he or she actually reads the dismissal letter? The ruling does not address the second question, as it was not raised in the case. However, the normal rule is that the employer must continue paying the employee until the contract of employment is ended. This ruling indicates that the employment is not ended in this situation until the employee has read the dismissal letter. So it may be prudent for an employer to consider allowing for a few days from the date on which the letter is sent (if sent through the post) when ending the payment of salary to the dismissed employee. Similarly in ascertaining the start of the three months time limit it would again be prudent for the employer to assume that the employment will actually end a few days after the dismissal letter is sent through the post.

Obviously one way of addressing the points raised in this case would be to hand deliver the dismissal letter to the employee. Sending the letter by Special Delivery could help, as it will require a signature on receipt, and that signature can be checked against any known copy of the employee's signature.

It is generally accepted that the best practice in dealing with dismissal is not to give the decision at the end of the disciplinary meeting. It is better for an employer to have time after the meeting to review the facts, the questions raised and the answers given by the employee, and write a carefully worded and comprehensive dismissal letter. We hope this decision of the Supreme Court does not encourage employers to reach the decision to dismiss is a rushed manner, as we take the view that such a development would be to benefit of neither employers nor employees. It may well be that the best way to avoid any problems that this case may cause is to ensure that the dismissal letter is hand delivered to the employee.

If you need any help or advice in relation to the issues raised in this article please do not hesitate to contact us.        
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