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Workers must have 'reasonable opportunity' to read dismissal letters, Supreme Court says

13 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, the court rejected the argument that contract law principles should apply.

Lord Kerr, delivering the judgment of the court in Gisda Cyf v Barratt [2010] UKSC 41, said: “The need to segregate intellectually common law principles relating to contract law, even in the field of employment, from statutorily conferred rights is fundamental.

“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 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.

Categorised in:

Trade Termination Professional negligence