Gisda Cyf v Barratt
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stanley Burnton,Lord Justice Mummery,Lord Justice Lloyd,Sir Paul Kennedy |
| Judgment Date | 02 July 2009 |
| Neutral Citation | [2009] EWCA Civ 345,[2009] EWCA Civ 648 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2008/2065,Case No: A2/2008/2065 |
| Date | 02 July 2009 |
[2009] EWCA Civ 345
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR JUSTICE BRIGGS)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Stanley Burnton and
Lord Justice Elias
Case No: A3/2008/2065
Mr P Greatorex (instructed by Richard C Hall & Partners) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
We do not consider we need a formal judgment on the permission to appeal. Permission to appeal is granted. The issues are made clear in the grounds of appeal and skeleton and will be considered in due course. As far as a stay is concerned, the way we propose to deal with it is to order a stay of the proceedings of the tribunal with leave to the respondent to apply in writing on notice at any time for removal of the stay. We propose to direct, without making a formal order for expedition because it is not the most urgent of cases, but we will direct the listing office of the Court of Appeal to list the appeal as soon as practical. A day should be enough, but with good skeletons on both sides which will be lodged in the normal way. Three judges. Court of Appeal.
Order: Application granted.
[2009] EWCA Civ 648
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
MR JUSTICE BEAN
Before : Lord Justice Mummery
Lord Justice Lloyd
and
Sir Paul Kennedy
Case No: A2/2008/2065
UKEAT/0173/08/ZT
MR PAUL GREATOREX (instructed by Richard C Hall & Partners) for the Appellant
MR RICHARD MULLAN (instructed by Hanratty & Company) for the Respondent
Hearing date: 6 th May 2009
Lord Justice Mummery :
Introductory
What was “the effective date of termination” of Miss Lauren Barratt's employment? Gisda Cyf, her employer, informed her by recorded delivery letter that she had been summarily dismissed for gross misconduct. Was “the effective date of termination” the date when the dismissal letter was written and posted (29 November 2006), or the date when it was delivered to her home address (30 November 2006), or was it the date when Miss Barratt opened the letter and read of her summary dismissal (4 December 2006)?
The effective date of termination matters in this case, because on it depends the jurisdiction of the employment tribunal (the ET) to hear and determine her complaint of unfair dismissal presented on 2 March 2007. If that was more than 3 months from “the effective date of termination”, the complaint was out of time and the ET has no jurisdiction. Further, in the circumstances of the case, the ET would not have been able to exercise its limited discretion to extend time.
The ET and the Employment Appeal Tribunal (the EAT) held that the complaint was presented in time. Gisda appeals with permission granted by this court on a renewed application (Stanley Burnton and Elias LJJ) on 31 March 2009.
Background
Termination of a contract is a common law concept, but “the effectivedate of termination” (my emphasis) is a defined statutory term. It is used only in the legislation creating statutory employment rights. It was defined in section 97(1) of the Employment Rights Act 1996 (the 1996 Act)-
“(a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, [it] means the date on which the notice expires,
(b) in relation to an employee whose contract is terminated without notice, [it] means the date on which the termination takes effect.”
The definition is substantially the same as that which was in the Employment Protection (Consolidation) Act 1978 (the 1978 Act). The earlier provisions were construed nearly 30 years ago by the EAT in its decision that the employee's knowledge of the summary dismissal was, in general, an essential element in ascertaining “the effective date of termination.” That is also the way in which the ET and the EAT construed section 97(1)(b) of the 1996 Act and applied it to the facts of this case.
In outline the statutory provisions governing the time limits for bringing an unfair dismissal claim are that an employee has 3 months in which to present a complaint of unfair dismissal and that time begins to run from “the effective date of termination”: section 111(2)(a) of the 1996 Act. The ET has only a limited power to extend the time. It must be satisfied that it was not reasonably practicable to comply with the time limit. The power is sparingly exercised (see Kirklees MBC v. Radecki [2009] EWCA Civ 298 at paragraphs 37 and 39).
The ET, in its judgment of 8 December 2007 following a pre-review hearing, and the EAT (Bean J), in a judgment of 25 July 2008, accepted Miss Barratt's contention that “the effective date of termination” in this case was Monday 4 December 2006. That was the date on which she discovered, on opening and reading Gisda's letter, that she had been summarily dismissed. Her complaint was in time, as it was presented to the ET before the end of the period of 3 beginning with that date.
Miss Barratt's related claim that her dismissal was an act of unlawful sex discrimination does not feature in this appeal, as the ET would have had power to grant an extension of time on the wider “just and equitable” grounds in the Sex Discrimination Act 1975. No such extension would be available for her unfair dismissal claim, as the ET held that it would have been reasonably practicable for Miss Barratt to present her complaint before the expiration of the period of 3 months.
Briefly stated, Gisda's case on appeal is that the tribunals erred in their construction of section 97(1)(b) and in its application to the facts. They ought to have held that Miss Barratt's proceedings were out of time, as “the effective date of termination” was not, as she contended and as the tribunals held, on 4 December. The correct view is that her summary dismissal took effect contractually before Sunday 3 December.
The process of dismissal began on 19 October when Miss Barratt was suspended pending investigation into her allegedly inappropriate conduct “witnessed by one of the Company's service users” at a private party in Blaenau Ffestiniog. The next stage in the process was a disciplinary hearing held on Tuesday 28 November. At the conclusion of the hearing she was not told of the decision. She was informed that she could expect to receive a letter on Thursday 30 November 2006 informing her of the outcome of the hearing.
On Wednesday 29 November Gisda posted a summary dismissal letter by recorded delivery to Miss Barratt at her home address. Delivery took place on the next day, but Miss Barratt was not at home. She had left early before the post arrived. She travelled to London to visit her sister, who had just had a baby. She did not return from London until late on Sunday 3 December between 10 and 11pm. While she was in London she did not make any inquiries about the letter. On her return she did not make any inquiries about the post until the following day. When she asked on Monday 4 December about post delivered while she was in London she was given the letter by her boyfriend's son. He found it among his homework papers. He had signed for it when it was delivered to the house on 30 November. Miss Barratt opened the letter and read that she had been summarily dismissed. She then exercised the right mentioned in the letter to appeal against the dismissal. The appeal, which was heard on 19 December 2006, was dismissed.
Gisda contended that the termination of her contract took effect contractually as soon as it accepted her conduct as a repudiation of her contract. That was on 29 November 2006 when the dismissal letter was written and posted. That was also the date stated in her ET1 as the effective date of termination. She was only paid up to that date. She made no claim for pay between that date and the date when she read the letter. Alternatively, termination took effect when Miss Barratt first had a reasonable opportunity to learn of her dismissal. That was before 3 December, because she could have phoned from London to inquire about the letter, which Gisda had told her would arrive at her home address on 30 November.
Judgments below and the cases
The tribunals below followed the general approach laid down by the EAT (Slynn J) in Brown v. Southall & Knight [1980] ICR 617 and re-iterated by the EAT (Morison J) in McMaster v. Manchester Airport plc [1998] IRLR 112. That approach is that when a summary dismissal is notified by letter “the effective date of termination” of the contract is, 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 has actually read the letter and knew of the decision or, at any rate, had a reasonable opportunity of reading it. The latter would cover cases where the employee deliberately did not open the letter or had gone away to avoid reading it.
In the ET the employment judge (sitting alone) held that the effective date of termination was 4 December when the dismissal was communicated to her. She did not discover till then that she had been...
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