Gisda CYF v Barratt [2009] EWCA Civ 648 CA

unfair dismissal | time limits | effective date of termination

The Court of Appeal has held that the effective date of termination of an employee who was dismissed for gross misconduct was the date on which she opened and read the letter from her employer informing her of the dismissal.

Gisda CYF informed Ms Barratt in a letter written and posted on 29 November 2006 that she was being summarily dismissed for gross misconduct. The letter was delivered to Ms Barratt's home address on 30 November 2006, but she did not open it until 4 December 2006. She lodged an unfair dismissal complaint on 2 March 2007 and the tribunal initially had to decide whether or not the claim was made within the three-month time limit. If the effective date of termination was 29 or 30 November, the claim was made out of time. However, if the effective date of termination was 4 December 2006, the claim was made in time. The Employment Appeal Tribunal (EAT) upheld an employment tribunal decision that the effective date of termination was 4 December 2006 and that the claim could proceed.

The Court of Appeal agreed, applying the EAT decision in Brown v Southall & Knight [1980] IRLR 130 EAT. In that case, the EAT had said that, when a summary dismissal is notified by letter, the effective date of termination of the contract is not the date when the employer decided to dismiss the employee or posted a letter saying so, but the date when the employee has actually read the letter and knew of the decision or, at any rate, had a reasonable opportunity of reading it. This approach meant that claims could be found to be out of time where the employee deliberately did not open the letter or had gone away to avoid reading it. As Ms Barratt did not have a reasonable opportunity of reading the dismissal letter until 4 December 2006 and did not go away deliberately to avoid reading the letter, the effective date of termination was 4 December 2006. Therefore, the claim was made in time.

Case transcript of Gisda CYF v Barratt (on the BAILII website)

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