November 2010 – Termination of Employment date

- News,

For about 30 years it has been the rule that an employer’s notice of termination of an employee’s employment does not bring the contract of employment to an end until the employee actually reads the notice or has a reasonable opportunity of doing so.

This was the decision in Brown v Southall and Knight in 1980. An employee has three months to bring tribunal proceedings commencing upon the date when notice of dismissal came to the employee’s attention. (See section 111 of The Employment Rights Act 1996)

A recent case, Gisda Cyf v Barratt has confirmed that the rule is still valid in spite of fervent attempts by the employer in that case to overturn the rule on the grounds that certainty was paramount. In that case, a decision to dismiss was taken on Wednesday 29th November and a confirmatory letter was sent the very same day, which arrived at the employee’s home on the Thursday 30th November. It was a recorded delivery letter and was signed for by the employee’s boyfriend but the employee was, at the time of delivery, already away for a long weekend and did not return home til Sunday night the 3rd December. She did not ask about the letter until the following morning when she read it. Therefore the date it actually came to her attention was the 4th December.

The Employment Tribunal decided that the 4th December was Day 1 of the three month period so proceedings issued up to the the 3rd March were in time – since the employee had issed on the 2nd March she was therefore able to proceed with her claim.
The problem is that this can introduce a human element of uncertainty into the calculation of the dates.

The lesson to be learned for an employer is to delviver the letter to the employee in person where possible and be sure the employee reads it there and then.

The lesson for the employee is to issue proceedings well before the second to the last day of the limitation period so as not to cause the employer to conclude it has a time based defence when it does not!!