Gisda Cyf  v Barratt


The case centered around the determination of  the effective date of the termination of a person’s employment. Respondent, Lauren Barratt, was suspended from her employment.  A disciplinary hearing was then  held. At the end of the hearing Ms Barratt was told that she could expect to receive the letter  informing  her of the outcome of the hearing. Ms Barratt knew that she was at risk of dismissal. However,  she had a sister who had given birth to a baby a week earlier. Ms Barratt wanted to see her sister and the baby and to help her sister, she left her home to travel to London. Later on the same day a recorded delivery letter arrived for her.

 It was signed for by the son of Ms Barratt’s boyfriend. She had not left instructions for it to be opened or read and so it was left, unopened and unread, awaiting her return. She returned home after three days, but did not open the envelope containing the letter that evening. Indeed, it was not until the following morning that she asked her boyfriend and his son whether any post had arrived. The son  handed it to Ms Barratt who, on reading the letter, discovered that she had been summarily dismissed for gross misconduct.

She was unsuccessful in an internal appeal. Then  a claim for unfair dismissal and sex discrimination was presented on her behalf to an Employment Tribunal. Depending on the view that one takes of the date on which Ms Barratt’s employment was brought to an effective end, her complaint was lodged either just within or just outside the period of three months from that date.

The relevant definition of the term, “effective date of termination”, was contained in section 97 (1) of the Employment Rights Act 1996.

Section 97 (1) of the 1996 Act provide: –

“(1) … in this Part ‘the effective date of termination’—

(a) in relation to an employee whose contract of employment is terminated by notice, whether given by

his employer or by the employee, means the date on which the notice expires,

(b) in relation to an employee whose contract of employment is terminated without notice, means the

date on which the termination takes effect …”

As  Ms Barratt had been dismissed without notice, her case was governed by sub-paragraph (b) of the subsection. The question to be decided was:  when did the termination of her employment take effect? Was it when her employer decided to terminate the employment? Alternatively, was it when the letter was sent or on the day that it was delivered? Was it when Ms Barratt read the letter or should the termination be regarded as having taken effect when she had a reasonable opportunity of learning of the contents of the letter? If so, when did that reasonable opportunity arise?

The employers (who were the appellant before the Supreme Court) argued during a pre-hearing review that the claims were out of time. The Employment Judge  held that the claims were within time. The  employers’ appeal against the decision of the Employment Judge was confined to the single issue that whether  the unfair dismissal claim had been brought in time. Employer’s argument was that whether a contract of employment remained in force should not depend on an examination of what a claimant did or on an investigation of what he or she had the opportunity to do. A contract could be terminated by one party without the other party actually being aware of the termination. It was so terminated when the communication could be expected “in the normal course of things” to have come to the other party’s attention. The same approach should be followed in determining the effective date of termination under section 97 of the 1996 Act. But this argument was rejected by the Employment Appellate Tribunal(EAT).

Before the Court of Appeal, it was submitted by the employers that the Employment Tribunal ought to have concluded that the respondent had a reasonable opportunity of reading the dismissal letter before  the day she actually read it. It was further argued that the Tribunal had erred in law in looking at the reasonableness of the respondent’s conduct rather than whether she had a reasonable opportunity to know of her dismissal before 3 December 2006. But the Court of appeal was not persuaded and dismissed the appeal.

The issue was while examining whether the respondent had the opportunity to learn of the contents of the letter, should the focus be on the reasonableness of her behaviour in failing to avail of the chance to discover what it contained, or should it be on the existence of the opportunity to do so? The Supreme Court agreed with the view of the Employment Judge, the EAT and the Court of Appeal that to include consideration of the behaviour of the respondent in an assessment of whether she had a reasonable opportunity to find out what the letter contained was not an error of law. The Supreme Court further held that though the fact that it would have been possible for her to have found out over the weekend what the letter contained is not to be left out of account in deciding when she had a reasonable opportunity to discover its contents but the fact that she chose to wait until she could read the letter herself should not be regarded as irrelevant to the reasonableness of the opportunity to be informed of her summary dismissal. It agreed  with decisions cited at the bar  that it would be unfair for time to begin to run against an employee in relation to his or her unfair dismissal complaint until the employee knows – or, at least, has a reasonable chance to find out – that he or she has been dismissed.  Dismissal from employment is a major event in anyone’s life. Decisions that may have a profound effect on one’s future require to be made. It is entirely reasonable that the time (already short) within which one should have the chance to make those decisions should not be further abbreviated by complications surrounding the receipt of the information that one has in fact been dismissed. The Supreme Court concluded  that conventional principles of contract law could not come into play in the interpretation of section 97. The construction and application of that provision must be guided principally by the underlying purpose of the statute viz the protection of the employee’s rights. The appeal was dismissed.