Under the Employment Rights Act, any claim for unfair dismissal must normally be made within three months after the 'effective date of termination'.
In cases of summary dismissal this is the date 'on which the termination takes effect'. Where the employee is told of the summary dismissal by letter, the tribunals have for at least thirty years said that such a dismissal takes effect only when the employee has read the letter of dismissal or has had a reasonable opportunity to do so.
In the recent case of Gisada Cyf v Barratt, the Supreme Court confirmed that this approach was still correct.
The dismissal letter had been sent to the claimant by recorded delivery. Her stepson had signed for it. She was away visiting her sister and had not actually opened it until four days later. Her dismissal was not effective until she had read the letter.
Points to Note:
- Under contract law, the dismissal cannot take effect before the decision is communicated to the employee, except where the employee has deliberately avoided the communications.
- What amounts to having a 'reasonable opportunity' to read a dismissal letter will depend on the circumstances of each case.
- This rule only applies to cases of summary dismissal.
- Where the contract is terminated with notice, the effective date of dismissal will be the date when the notice expires. This will not usually involve issues as to when the notice letter was received and will be far easier for an employer to establish.
- As the Supreme Court put it in its judgment, if an employer wishes to be certain that an employee knows that they have been summarily dismissed, they should 'resort to the prosaic expedient' of informing them in a face-to-face interview.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.