Dismissal takes time if you drop them a line

14 July 2009

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An employee must actually read the letter dismissing her for it to be effective, the Court of Appeal has decided. Their decision highlights for employers that a risk of dismissing by post is that it might take longer than expected to be effective.

How Miss Barratt, the respondent in the case of Gisda Cyf v Barratt, was dismissed is not that unusual. At the end of her disciplinary hearing on a Tuesday, she was told that she could expect to receive a letter on the Thursday which would inform her of the decision. The letter from her employer, telling her that she was dismissed for gross misconduct, was sent by recorded delivery on the Wednesday and signed for by her boyfriend's son on the Thursday. The Court decided that this was not enough for her to be dismissed that day. Their conclusion was that dismissal did not occur until Miss Barratt returned home the following Monday and read the letter.

This case was about the three month time period for Miss Barratt to bring a Tribunal claim, and the Court's decision gave her the extra days she needed for her claim to be "in time" and thus allowed to proceed. However the implications of this decision for employers are more far-reaching and problematic.

If the dismissal does not occur until the employee reads the letter, how can you calculate when pay and benefits should end? You must allow at least the time it will take for the letter to reach the employee but a well-timed "trip" may mean an employee being able to claim an extra couple of weeks pay because the dismissal is not effective until they know about it.

The Court did state that the dismissal may still occur where the employee deliberately did not open a letter or went away to avoid reading it, but how can that be proved?

The outcome also means that a dismissal letter sent to the wrong address will not be effective at all. The case also raises questions about when notice starts to run in a similar situation, although in such circumstances you should be able to protect yourself with a well-written employment contract.

In the light of this decision, some practical suggestions are:

It is better to dismiss someone face to face if possible, as that avoids any uncertainty (but do confirm it in writing and also check the terms of the employment contract as some may require termination to be in writing).
If adjourning a hearing to take some time to decide, consider getting the employee to return to be given the decision in person.
At least ensure that you confirm contact details with an employee who is about to be sent a decision, and check if they are going away.
If posting a decision, consider sending it by recorded delivery and post (or even having it delivered by hand), and also telephoning the employee to confirm they have received the letter or telling them the outcome if they claim they have not done so.
Email could be a quicker way of ensuring receipt of the decision and read receipts can be helpful, although there may remain uncertainty about when the email is actually read, and by whom.
If dismissing someone just short of a years service (so they do not gain the right not to be unfairly dismissed), do not push it too close. This case suggests an employee cannot be dismissed if you cannot contact them (and remember a week may be added to their length of service by statute anyway).
Review your employment contracts and check what they say about notice.

About the author

This article was put together by the FPB's legal advisers, Mace & Jones Solicitors. For more information see www.maceandjones.co.uk.

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Dismissal takes time if you drop them a line

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