GISDA Cyf v Barratt; [2009] EWCA Civ 648; [2009] WLR (D) 229

EMPLOYMENT — Unfair dismissal — Complaint — Time limit — Summary dismissal letter reaching employee’s home when employee away from home — Employee reading dismissal letter on return — Whether “effective date of termination” when letter arrived or subsequently read — Whether claim issued within statutory time limit — Employment Rights Act 1998, s 97(1)(b)

GISDA Cyf v Barratt

[2009] EWCA Civ 648; [2009] WLR (D) 229

CA: Mummery, Lloyd LJJ, Sir Paul Kennedy: 2 July 2009

The “effective date of termination of employment” within section 97(1)(b) of the Employment Rights Act 1996 was not necessarily the date yielded by contractual analysis. When determining the relevant time limit for making an unfair dismissal claim, an employment tribunal had not erred in concluding that the effective date of termination of employment was when the employee read the letter of summary dismissal and not the date when the letter reached the employee’s home address when she was away.

The Court of Appeal so held in a reserved judgment, dismissing the appeal of the employer, GISDA Cyf, from the decision of Bean J in the Employment Appeal Tribunal on 24 July 2008, who had dismissed the employer’s appeal from a decision of an employment tribunal sitting in Rhyll and promulgated on 14 December 2007, that the claim form filed by the claimant, Lauren Barratt, against the employer for unfair dismissal on 2 March 2007 had been filed in time.

On 29 November 2006 the employer posted a summary dismissal letter by recorded delivery to the claimant, which reached her home address on the following day while she was away from home. The claimant did not read the letter until her return on 4 December 2006 and filed her claim on 2 March 2007. The employment tribunal and the appeal tribunal concluded that the claim was presented within the statutory three-month time limit, since her employment terminated on 4 December 2006 when the claimant read the letter and not, as the employer contended, on 29 or 30 November when it was, respectively, posted or delivered to her home address.

MUMMERY LJ said that the termination of a contract was a common law concept, but the “effective date of termination” was a defined statutory term, used only in the legislation creating statutory employment rights and substantially the same as that contained in the Employment Protection (Consolidation) Act 1978. The tribunals below had construed s 97(1)(b) of the Employment Rights Act 1996 according to the general approach laid down by the Employment Appeal Tribunal in Brown v Southall & Knight [1980] ICR 617 and reiterated in McMaster v Manchester Airport plc [1998] IRLR 112, that when a summary dismissal was notified by letter the effective date of termination of the contract was, in general, not the date when the employer decided to dismiss the employee or posted a letter saying so, but the date when the employee had actually read the letter and knew of the decision, or at any rate, had had a reasonable opportunity of reading it. The expression “effective date of termination” was not a term of contract law which had found its way into employment protection legislation. It was a statutory construct specifically designed and defined for the purposes of a legislative scheme of employment rights based on a personal contract, including the right not to be unfairly dismissed and the right to have three months in which to present a complaint to the employment tribunal for the infringement of the right. The defined statutory term should be interpreted and applied in the overall context of protection of employees in their employment and their rights and remedies for being unfairly dismissed from it. The precise issue of construction was when, in the context of a time limit for bringing a claim for unfair dismissal, did the termination of her contract without notice take effect? The approach in Brown’s case had survived for nearly three decades without legislative amendment. Widdicombe v Longcombe Software Ltd [1998] ICR 710 supported the general proposition that ambiguity as to notice of the date of termination was to be strictly construed against the employer. Octavius Atkinson & Sons Ltd v Morris [1989] ICR 431 showed that contractual entitlements and obligations under a contract of employment might continue after the date of termination by summary dismissal without indicating that the contract was intended to continue after the time when it was expressly terminated by summary dismissal. Potter v R J Temple plc The Times, 11 February 2004 supported the general proposition that “the effective date of termination” in unfair dismissal law was not necessarily the date yielded by contractual analysis and emphasised the importance of certainty. In conclusion, the court should not overturn a settled construction of the employment rights legislation on the basis that it was not appreciated in Brown’s case that the true construction of s 97(1)(b) of the 1996 Act was in fact governed by a general legal principle that the giving or receipt of the notifying letter was by itself effective to terminate a contract even a personal contract. The language of the statutory provisions was reasonably capable of the purposive construction in the Brown v Southall & Knight line of cases.

SIR PAUL KENNEDY agreed with Mummery LJ and LLOYD LJ delivered a dissenting judgment.

Appearances: Paul Greatorex (instructed by Richard C Hall & Partners, Chester) for the employer; Richard Mullan (instructed by Hanratty & Co Newtown, Powys) for the claimant.

Reported by: Ken Mydeen, barrister