Pictured above: Gemma Steele
Employers who choose to dismiss their employees by sending a
letter in the post could be creating more problems than they
realise according to employment lawyers at Browne Jacobson
following a recent Supreme Court ruling.
The decision in the recent case of Gisda Cyf v Barratt is an
important ruling on the effective date of termination when an
employee is dismissed by post and will have implications for time
limits in unfair dismissal claims.Lauren Barratt was dismissed by
charity Gisda Cyf over allegations about inappropriate behaviour at
a private party. A disciplinary hearing on 28th November 2006 told
her she should expect a letter outlining its decision on 30th
November.
Barratt was away when the letter arrived on 30th November and
did not read it until 4th December when she returned. She appealed
the decision which failed so launched a claim for unfair dismissal
and sex discrimination on 2nd March 2007.
In unfair dismissal claims, the claimant has three months from
the termination of their employment to lodge their complaint. In
Barratt's case her claim could only be heard if it was decided the
date of her dismissal was 4th December.
The Supreme Court ruled that the 'effective date of termination'
of Barratt's employment was the date on which she read the letter
rather than the date the letter arrived
Gemma Steele, an employment law specialist at Browne Jacobson,
said
"Employers should take note of this decision. If the parties are
unclear about the effective date of termination there can be
unforeseen consequences for employers. If an employer incorrectly
concludes that the effective date of termination was earlier than
it in fact was unfair dismissal claims that are thought to be out
of time could be in time. Employers may also be liable for salary
up to and including the effective date of termination and this
could result in a successful unlawful deduction from wages claim
and an internal appeal may incorrectly be held to be out of time.
The Acas Code does not specify a time limit and employers should
therefore ensure they consider all the circumstances before
rejecting an appeal as out of time."
However, it is not all bad news for employers. If an employee
deliberately seeks to avoid opening a letter confirming dismissal,
an employment Tribunal is likely to hold that the effective date of
termination is when that letter would have arrived. Thus an
employee cannot try to argue an unfair dismissal claim is in time
on this basis.
Ideally employers should opt to tell their employees about their
dismissal in person, keeping a careful note and follow this up with
written communication to avoid any ambiguity as to the effective
date of termination.
For more information about Browne Jacobson, please visit their
website here: www.brownejacobson.co.uk