A summary dismissal takes effect when an employee actually reads an employer's dismissal letter, not the date when the letter was sent....
The facts of the case were that Barratt was suspended from her employment because of alleged inappropriate behaviour at a private party. A disciplinary hearing was held on 28 November 2006 during which she was told that she could expect to receive a letter on 30 November 2006, concerning her possible dismissal. However, Barratt was away from her home and did not return and read the letter until the morning of 4 December 2006, at which point she learnt of her summary dismissal for gross misconduct.
Barratt filed a claim for unfair dismissal and sex discrimination at the Employment Tribunal on 2 March 2007.
The broader issue in this case was on what date was Barratt’s employment brought to an effective end – when the letter was posted, when it was delivered, or when it was actually read?
The Supreme Court was guided by the underlying purpose of the employment legislation. The Court held the legislation was part of a charter protecting employees’ rights. An essential part of those rights is the requirement that employees be informed of any possible breach of those rights. It would not be reasonable for time to begin to run against an employee in relation to the 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 narrower issue in the case was whether it was correct to include consideration of the behaviour of the employee in an assessment of whether she has had a reasonable opportunity to find out about her dismissal. It was held that these issues should be considered, but there is a need to be mindful of the human dimension in considering what is reasonable to expect of someone facing the prospect of dismissal from employment. To concentrate exclusively on what is practically feasible may compromise what can realistically be expected.
The Supreme Court held unanimously that Barratt had submitted her claim within the three month deadline. The Court said:
- The effective date of termination of employment is when the employee is informed of the dismissal or when the employee has had a reasonable opportunity of discovering that she has been dismissed ie. when the employee has actually read the letter or has had a reasonable opportunity to read it, and
- It is correct to include consideration of the behaviour of the employee in an assessment of whether the employee has had a reasonable opportunity to find out about the dismissal. The rule would not apply if the employee has deliberately avoided receiving the letter or opening it.
Published: 15 Dec 2010