[

Thomas Oxton, Barrister, Alexander Chambers

](http://www.alexanderchambers.co.uk/thomas-oxton)The Supreme Court's recent decision in [Gisda Cyf v Barratt]()¹ confirmed the rule that (1) the effective date of termination ('EDT') of employment for the purposes of unfair dismissals that occur without notice² is when an employee is informed of her dismissal or when she has had a reasonable opportunity of discovering that she has been dismissed;³ and (2) her behaviour may properly be considered when assessing whether she has had a reasonable opportunity to find out about the dismissal.⁴

**The Facts
**The appellant charity suspended Ms. Barratt on 19 October 2006 following suspected misconduct. At the end of a disciplinary hearing on 28 November 2006 she was told that she could expect to receive a letter on 30 November informing her of the outcome. She knew that she was at risk of dismissal. However, on 30 November at 8 a.m. she left home to visit and offer help to her sister who had given birth a week earlier. A recorded delivery letter communicating her summary dismissal arrived for her later the same day. A family member signed for it but was not instructed to open or read it hence it was left unread awaiting her return. Ms. Barratt returned on 3 December, but learnt of and read the letter the following morning on the 4th. An internal appeal failed and on 2 March 2007 she presented a claim to the employment tribunal for amongst other things unfair dismissal. Depending on the EDT of Ms Barratt's employment her claim was presented either just within or just outside the prescribed three months limitation period. Lord Kerr, delivering the Court's judgment, agreed with the employment tribunal, the EAT⁵ and the Court of Appeal⁶ that the claim was presented within time.

**The Origins of the Rule
Lord Kerr noted that Brown v Southall & Knight⁷ is the origin of the rule that the EDT is when an employee is informed of her dismissal or when she has had a reasonable opportunity of discovering that she has been dismissed. There, the letter of dismissal was posted on 20 July and arrived at the earliest the day after when the employee had already left home to go on holiday. He read the letter when he returned on 31 July, which was deemed to be the EDT, and thereby he acquired the (then) minimum 26 weeks' continuity of service required to claim unfair dismissal. The EAT held that the EDT was neither the date of posting nor of receipt but instead when the employee was either told of, or had had a reasonable opportunity of reading, the notice of dismissal. Regarding the second limb of the rule – i.e. that an employee's behaviour may properly be considered when assessing whether she has had a reasonable opportunity to find out about the dismissal – the EAT implicitly endorsed such an approach although strictly speaking their comments were obiter, commenting that if an employee deliberately does not open a letter communicating dismissal or goes away to avoid reading it, he might be debarred from asserting that his dismissal has not been notified to him. In McMaster v Manchester Airport**⁸ the EAT followed Brown holding that the EDT was 10 November although a letter notifying summary dismissal was received at the employee's home on 9 November when he was abroad on a day-trip from which he returned on the 10th. Regarding the second limb of the rule, the EAT commented on the suggestion that an employee may be debarred from arguing that he has not been notified of dismissal that this is relevant only where his ignorance of the contents of the letter of dismissal involves "shutting his eyes to what he [knows is] coming his way, or, alternatively, evading the consequences of what he [knows] the employers [are] going to do."

Contractual Interpretative Principles v Statutory Construct
Before the Supreme Court the appellant advanced two arguments. First, it argued that Brown and McMaster should be overruled because analysis according to traditional contractual principles meant that it was wrong that the EDT should depend on an employee knowing or having a reasonable opportunity to know that her employment had ended.⁹

Applying a contractual analysis, Ms Barratt's alleged misconduct amounted to a fundamental breach of contract of which the appellant communicated acceptance by its letter of dismissal upon its receipt. Citing The Brimnes¹⁰ the appellant contended that the letter of dismissal arrived in a manner such that in the normal course of business it would have come to the Ms. Barratt's attention on the 30th. Therefore, she should not be able to rely upon her failure to act in a normal businesslike manner so as to postpone the effective time of the notice until the 4th when it in fact came to her attention. In effect, she should be deemed to have 'constructive notice' of her dismissal.¹¹

The Supreme Court rejected the contractual analysis, agreeing¹² with Mummery LJ's finding that section 97(1)'s concept of an 'EDT' is a "statutory construct"¹³ the interpretation of which "must be guided principally by the underlying purpose of the statute viz the protection of the employee's rights".¹⁴ It forms part of a legislative "charter protecting employees' rights" which must be interpreted in a manner "that promotes those rights".¹⁵ Protection of employees' rights presupposes that they are made aware of any breach of them and that the already short limitation period for presenting a claim should not be further abbreviated by applying contractual rules concerning constructive notice.¹⁶

That the Supreme Court confirmed the Court of Appeal's view that the EDT is a statutory construct rather than subject to contractual interpretation for the purposes of unfair dismissal is not surprising. The judiciary has long recognised that contractual rights such as that not to be wrongfully dismissed and the right to not be unfairly dismissed are different in scope. As Phillips J noted in Redbridge London Borough Council v Fishman, which the Supreme Court cited with approval, unfair dismissal has "not got much to do with contractual rights and duties". ¹⁷  As the same judge noted in a previous case, the difference stems from the view that the right not to be unfairly dismissed "confers on the employee a quasi property in his employment whereas at common law, provided proper notice is given, an employee has no right to retain his employment or be compensated if he is dismissed".¹⁸

However, the premise that the 1996 Act is a 'charter' aimed at protecting employees' rights hence that tribunals should interpret it so as to promote those rights calls into question existing canons of interpretation, at least as far as they concern unfair dismissal. For example, the right's underlying purpose is to provide an element of job security yet it is ill-served by the 'range of reasonable responses' test.¹⁹ This determines whether an employer acts reasonably in treating his reason for dismissal as a sufficient reason to dismiss notwithstanding that the relevant provision, section 98(4), is itself silent as to the test to be applied. As the TUC noted, the test means that "the substantive fairness of any dismissal is rarely if ever scrutinised by the tribunals. The only exception is cases where the dismissal is deemed to be automatically unfair due generally to a form of discrimination. As a result, unfair dismissal law has effectively become a procedural right, with the courts never interfering in the managerial prerogative".²⁰ Another example concerns rights to re-instatement / re-engagement.²¹ The 1996 Act envisages them as the primary remedy when unfair dismissal occurs - the employee first must be asked whether he wishes such remedies to be ordered before the tribunal determines any compensation payable under sections 118 – 126. However, in practice such re-employment rights are illusory with orders being upheld in only 7 cases in 2008 – 2009.²² In part, applications for such orders fail because currently tribunals are required to make a preliminary determination as to whether it is practicable for an employer to comply with such an order.²³ However, the statute itself merely requires this factor to be taken into account when considering whether to make an order;²⁴ it is at a later stage in the context of deciding whether to make an additional award in the event of non-compliance that the tribunal must determine any submission by the employer that compliance was not practicable.²⁵ Arguably, this discourages orders relating to re-employment and is contrary to Parliamentary intention.²⁶ However, if the concept of the EDT is a statutory concept which requires purposive interpretation so as to further employee rights, by parity of reason the courts should re-visit other aspects of Part X of the 1996 Act such as those mentioned above so as to interpret them in a congruent manner.

**Reasonable Opportunity
**The appellant's second, alternative argument was that 'reasonable opportunity' should be interpreted narrowly by assessing objectively whether there is an opportunity for the employee to learn of the dismissal rather than considering whether she acts reasonably in failing to avail herself of such an opportunity. It was submitted that this approach was required because Section 97(1) is essentially a jurisdictional provision the application of which should not be determined by examining the reasonableness of the behaviour of the person who sought to establish it.²⁷

The Supreme Court when rejecting this approach initially asks itself the question "should the focus be on the reasonableness of [an employee's] behaviour in failing to avail of the chance to discover what [the notice of dismissal] contained, or should it be on the existence of the opportunity to do so?"²⁸ However, it provides an ambiguous answer. On one hand, the Court rejects focussing "exclusively" on opportunities because this might lead to asking whether it is "practically feasible" to learn of the dismissal. This is inappropriately demanding of employees to whose "human dimension" tribunals should give due weight; i.e. employees may have legitimate reasons for failing to use opportunities to learn of their dismissal.²⁹ This suggests all of an employee's subjective frailties are relevant concerns. On the other hand, an employee's failure to use opportunities to learn earlier of her dismissal is an omission that the tribunal is also required to take into account.³⁰ This suggests that 'reasonable opportunity' also has an objective element.

How the tribunals will apply the Supreme Court's guidance regarding the concept of reasonable opportunity is hard to predict. However, it concerns a factual issue that will involve tribunals exercising their discretion as to what weight they should attach to subjective and objective elements. Therefore, successful appeals probably will be rare.

*Thomas Oxton
Alexander Chambers*

*[1] [2010] UKSC 41
[2] Section 97(1)(b) of the Employment Rights Act 1996
[3] Paragraph 34
[4] Paragraph 31
[5] UKEAT/0173/08/ZT (24 July 2008)
[6] [2009] EWCA Civ 648; [2009] IRLR 933
[7] [1980] ICR 617; [1980] IRLR 130 (EAT, Slynn J presiding).
[8] [1998] IRLR 112 (EAT, Morison J presiding)
[9] At paragraph 23
[10] Tenax Steamship Co. Ltd v. The Brimnes [1975] QB 929 Megaw LJ at 966 – 967
[11] The term 'constructive or presumed knowledge' was used in McMaster
[12][2010] UKSC 41 at paragraph 35
[13][2009] IRLR 933 at 936 [34]: "The expression 'effective date of termination' is not a term of contract law which has found its way into employment protection legislation. It is a statutory construct..... The defined statutory term should be interpreted and applied in the overall context of protection of employees ..."
[14] [2010] UKSC 41 at paragraph 41
[15] At paragraph 37
[16] At paragraphs 34 and 36
[17] [1978] ICR 569, EAT, at 574
[18] C A Treganowan v. Robert Knee & Co Ltd [1975] IRLR 247 at 248
[19] Foley v. Post Office; HSBC Bank plc v. Madden [2000] ICR 1283, CA.
[20] Resolving Disputes at Work at 2.44, TUC Publications (20.6.2007)
[21] Sections 113 – 115
[22] Employment Tribunal and EAT Statistics (GB) 1 April 2008 to 31 March 2009
[23] Port of London Authority v. Payne [1994] IRLR 9 Neill LJ at 13[42]
[24] Sections 116(1), (3)
[25] Section 117(4)
[26] M Bennett Practicability of Reinstatement and Re-engagement Orders [1994] 23 Ind. LJ (June) 164 at 165. This article addresses similar provisions in the Employment Protection (Consolidation) Act 1978. The author also notes that in 1994 research suggested that 3% of cases resulted in reinstatement / re-engagement orders. In light of the latest tribunal statistics such orders have become even more infrequent following Port of London Authority.
[27] [2010] UKSC 41at paragraph 23
[28] At paragraph 29. For example, the risk of dismissal for gross misconduct was a significant life event that rendered it legitimate for Ms. Barratt to choose to read the letter for herself and to do so alone rather than to have somebody read it to her over the telephone in her absence.
[29] At paragraph 30
[30] At paragraph 31*