Veitch Penny LLP - Exeter | Crediton, Devon

Case

GISDA Cyf – v - Barrett
Court of Appeal – 2 July 2009

Issues

(1) Disciplinary hearing
(2) Time limits
(3) Effective date of termination

Facts

Lauren Barrett was employed by GISDA Cyf. She was suspended in October 2006. Her employer investigated allegations regarding inappropriate conduct at a private party. The conduct was witnessed by one of her employer’s service users.

A disciplinary hearing was heard on 26 November. At the end of the meeting she was told that she would get a letter outlining the decision on 30 November.

A letter was posted to her by recorded delivery on 29 November. The letter dismissed her summarily.

A member of Miss Barrett’s family signed for the letter. However, Miss Barrett didn’t receive it as she was in London visiting her sister who had recently had a baby.

Miss Barrett only found out about the letter when she returned home on 4 December.

She brought claims against her employer of unfair dismissal and sex discrimination. Her claim was issued on 2 March 2007.

An issue arose as to whether the claims had been issued within the three month time limit applicable to the claim. If the accepted date of termination was calculated by reference to the date the letter was sent or delivered, then the claim would be out of time. Alternatively, if it was calculated by reference to the date the employee read the letter then the claim would be in time.

The Employment Tribunal found that the claim was in time stating that the effective date of termination needed to be calculated by reference to the date the employee read the letter in question, namely 4 December 2006.

Decision

The Court of Appeal confirmed the earlier decision. The effective date of termination was the date upon which the decision was communicated to the employee i.e. read by Miss Barrett on 4 December.

In reaching its judgment, the Court followed the case of Brown –v- Southall and Knight (1980) and McMaster –v- Manchester Airport (1998). The decision may have been different if the employee had deliberately not read the letter or avoided receiving it.

Comments

This is a useful reminder to employers to think carefully about its actions during a disciplinary procedure. If a decision to dismiss is made, then the date upon which the decision is communicated is of importance. It is most of relevance to the calculation of the effective date of termination for the purposes of bringing a claim, but also of practical relevance when dealing with financial payments of salary, benefits etc. It is also particularly of relevance when an employee is just short of one year’s continuity of service, at which point an employee acquires the right not to be unfairly dismissed.

Accordingly, decisions such as dismissal are best communicated in person to avoid any doubt over the date of termination and then confirmed in writing.

Rachel Billen – Associate Solicitor, Employment Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.