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Supreme Court refuses to condemn worker for delay in reading dismissal letter

19 October 2010

Workers informed by post that they have been sacked must have a “reasonable opportunity” to read their dismissal letters, the Supreme Court has ruled.

Confirming previous case law on section 97 (1) of the Employment Rights Act 1996, Lord Kerr rejected the argument that contract law principles should apply.

Delivering the judgment of the court in Gisda Cyf v Barratt [2010] UKSC 41, Lord Kerr said: “The common law recognised certain employment rights, but the right at common law not to be wrongfully dismissed is significantly narrower than the statutory protection against unfair dismissal.”

The court heard that Lauren Barratt, who worked at Gisda Cyf, a Welsh charity for the homeless, was suspended after allegations that she “behaved inappropriately” at a private party.

At the end of a disciplinary hearing, she was told that she would be informed of the outcome in a letter, which would arrive two days later.

Before the letter arrived Barratt took a train to London to help her sister cope with the arrival of a new baby. Four days later, the morning after her return, Barratt opened the letter and found out she had been dismissed for gross misconduct.

She lodged a claim for unfair dismissal and sex discrimination at the employment tribunal two days before the three-month deadline expired. Her employers argued that the deadline had already expired because her effective date of termination was the day the letter arrived.

The employment tribunal, EAT and Court of Appeal rejected this argument. They also rejected a further argument, that the leading EAT decisions in Brown v Southall & Knight [1980] IRLR 130 EAT and McMaster v Manchester Airport plc [1998] IRLR 112 EAT, which indicated that the effective date of termination was when the employee had actually read the letter and knew of the decision or at least had a reasonable opportunity of reading it, were wrongly decided.

“The circumstances of the present case exemplify the need to be mindful of the human dimension in considering what is or is not reasonable to expect of someone facing the prospect of dismissal from employment,” Lord Kerr said.

“To concentrate exclusively on what is practically feasible may compromise the concept of what can realistically be expected. The prospect of summary dismissal for gross misconduct (which Ms Barratt apparently entertained) is a fairly unenviable one.

“That she should wish to read the letter in which that prospect materialised is not in the least surprising. If it contained details of the findings made against her, it is entirely to be expected that, at least in the first instance, she would wish to absorb these alone.

“She is not to be condemned, therefore, for failing to give instructions that the letter should be opened and read to her during the weekend that she spent with her sister.”

The charity’s appeal was dismissed.

Richard Hall of Richard C Hall & Partners in Chester acted for the charity. He said that although he was “bitterly disappointed” by the Supreme Court ruling, it had clarified the law on effective termination dates.

“In plain terms, when an employer decides to terminate the contract of an employee, it must be done at a face-to-face meeting,” he said. “Dismissal only takes place once the employee is aware of the fact.”

Robert Hanratty, partner at Robert Hanratty & Co in Newtown, Powys, acted for Barratt at the Court of Appeal. He said that Barratt did not appear at the Supreme Court, and was not represented, because her case had already settled.

“In view of the compromise of the underlying litigation, she took no further part in the case,” he said.

Categorised in:

Company, Consumer, and Contract Termination Discrimination