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Dismissal by post

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A recent decision from the Supreme Court has held that when a dismissal is communicated to an employee in a letter via the postal system, the contract of employment is not terminated until the employee has read the letter or has had a reasonable opportunity to read it. The case, Gisda Cyf v Barratt (i) , was an appeal by the employer of the decision by the Court of Appeal (ii) that a claim of unfair dismissal by Ms Barratt had been brought in time. Ms Barratt had been summarily dismissed from her position with Gisda Cyf for gross misconduct; she had attended a disciplinary hearing on 28 November 2006, at the end of which she was told she could expect a letter informing her of the outcome on 30 November. A letter was sent by the employer on 30 November, however Ms Barrett was not at home having gone to visit her sister who had just given birth. The letter was signed for by the boyfriend's son, but remained unopened. Ms Barrett made no enquiries about the letter whilst she was away and did not open it until 4 December 2006. On 2 March 2007 Ms Barrett filed a claim for unfair dismissal and sex discrimination, normally an employee has three months from their effective date of termination to bring an action. The case therefore fell upon establishing what the effective date of termination (EDT) of Ms Barrett's employment contract was. It was claimed by the employer that the EDT was the 30 November and therefore the claim had been brought outside the three-month period; but the Employment Appeal Tribunal and the Court of Appeal held that the claim had been brought within the time limit, the EDT being when she had read the letter on 4 December. In the appeal to the Supreme Court the employer submitted that the EDT for purposes of the Employment Right Act 1996 should be viewed contractually, and therefore termination should occur when the employer has done all that could reasonably be required of it. The appeal was dismissed rejecting the employer's argument that conventional principles of contract law should be used in interpreting the Employment Right Act. The purpose of the statute was for the protection of employee's rights, and therefore the Court upheld the rule that an employee is entitled to either be personally informed or have a reasonable chance of finding out that they had been dismissed before time began to run against them. Further, the Supreme Court decided that it was not unreasonable that Ms Barratt had not asked someone else to open the letter and read it to her; it was felt that knowing that potentially she was facing the prospect of summary dismissal she was not to be condemned for not asking someone else to read it. Employers seeking to avoid similar scenarios should take steps to be sure of the effective date of termination of its employee's contract. Where possible the outcome of disciplinary tribunals should be conferred face-to-face rather than by postal letter; but if that is not a reasonable option then a concerted effort should be made to make sure that letters are delivered in to the hands of the employee. • For additional information please contact: Alexandra Dean of Gepp & Sons.

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