Gisda Cyf v Barratt [2009] EWCA Civ 648

[2009] EWCA Civ 648Case No A2/2008/2065
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
MR JUSTICE BEAN
UKEAT/0173/08/ZT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Date: 02//07/2009
Before
LORD JUSTICE MUMMERYLORD JUSTICE LLOYDSIR PAUL KENNEDY
Between
GISDA CYFAppellantMISS LAUREN BARRATTRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
MR PAUL GREATOREX (instructed by Richard C Hall & Partners) for AppellantMR RICHARD MULLAN (instructed by Hanratty & Company) for RespondentHearing Hearing date: 6 th May 2009
Judgment

Introductory

[1]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)?[2]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.[3]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

[4]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.”[5]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.[6]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).[7]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.[8]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.[9]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.[10]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.[11]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.[12]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

[13]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 isthat 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.[14]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 dismissed. She did not have a reasonable opportunity of reading the dismissal letter till then. She did not go away deliberately to avoid reading the letter. A claim presented on or before 3 March 2007 would have been in time. The claim was presented in time on 2 March 2007.[15]Bean J in the EAT rejected the doctrine of constructive or presumed knowledge, such as is applied in cases concerning provisions for the service of documents, as appropriate for determining the date of termination of a contract of employment, which is a contract for personal services. He distinguished the case of The Brimnes [1973] 1 WLR 386 (Brandon J);[1975] QB 929 (CA) cited by Mr Greatorex, who appeared for Gisda, as authority in support of the proposition that a contract may be terminated by one party without the other party being actually aware of the communication of the termination. On that basis the contract is terminated at the time when notice of the termination would “in the normal course of business” have come to the other party’s attention on its arrival. The case was one of notice of termination of the charter of a ship by telex to a business address. It was not a contract for personal services.[16]The EAT judgment in Miss Barratt’s favour has an accurate legal headnote of the decision:
“Where a decision to dismiss is communicated by a letter sent to the employee at home, and the employee has neither gone away deliberately to avoid receiving the letter nor avoided opening and reading it, the effective date of termination is when the letter is read by the employee, not when it arrives in the post.”
[17]Bean J considered that the earlier EAT decisions had laid down “a clear and workable principle” with which he agreed.

Gisda’s submissions

[18]On behalf of Gisda Mr Paul Greatorex forcefully argued two grounds of appeal.[19]The first was that the ET had not correctly applied the law laid down in the earlier EAT decisions to the facts of the case. He submitted that the ET ought to have concluded that Miss Barratt had a reasonable opportunity of reading the dismissal letter before 3 December 2006. She was anxious to know the outcome. She said that she thought that she knew what it would be. She had been told that Gisda’s letter would arrive on 30 November. She could have phoned up from London to find out what the letter said.[20]The ET had erred in law in looking at the reasonableness of Miss Barratt’s conduct rather than whether she had a reasonable opportunity to know of her dismissal before 3 December 2006. On this point the case should be remitted to the ET for a rehearing at which the relevant facts could be found and the law correctly applied to them.[21]In my judgment, this ground fails on the short point that there was no error of law in the ET’s decision. It was open to the ET to conclude on the evidence that the claimant had not gone away deliberately to avoid reading the letter, that she left for London without knowing the decision and that she did not have a reasonable opportunity of reading the letter of dismissal until 4 December. As the Chairman of the ET said- “ 8. …..Whilst she may have been able to ask someone to read the letter over to her she did not and this did not seem to be an unreasonable position to adopt given the reason for her absence from the home.”[22]The second ground was more substantial and radical. It was that the earlier EAT decisions on this point are wrong, that they are not binding on this court and that they should be overruled. Gisda’s case was that it had brought Miss Barratt’s employment to an end when it accepted her repudiatory conduct. An act of acceptance of repudiation required no particular form. Though usually done by communication of the decision to terminate it might be sufficient to do an unequivocal overt act inconsistent with the subsistence of the contract without any concurrent manifestation of intent directed to the other party: see Chitty on Contracts (29th ed at paragraph 24-013).[23]Gisda recorded its decision to accept repudiation in the dismissal letter sent on 29 November. It had also stopped her pay. They were unequivocal overt acts inconsistent with the subsistence of the contract of employment. The date of the letter, alternatively the date of its delivery, was the effective date of termination. It was simply irrelevant for the tribunal to consider Miss Barratt’s actual knowledge of the dismissal or the reasonable possibility of her gaining that knowledge earlier than she actually did.[24]Mr Greatorex insisted that what mattered for the purposes of section 97(1)(b) was what the employer did to terminate the contract and when he did it, not what the employee knew or when the employee knew it. As matter of contract law the effective termination of an employment contract may pre-date the employee’s actual knowledge of the summary dismissal. There was no principle of contract law requiring an employer actually to communicate the termination of the contract to the employee for the termination to take effect. It was wrong to fix the date of summary dismissal as the date of the employer’s actual knowledge of the dismissal. The legislation catered for practical difficulties that an employee might encounter in meeting the 3 months’ deadline by giving the ET discretion to extend time.[25]The requirement of actual knowledge of dismissal was a misreading of the legislation. It was wrong as a matter of contract law. It was also undesirable in practice, as it could lead to uncertainty about the critical date leaving the employer not knowing when obligations such as pay, health care, the company car and so on would cease. The suggested approach, which was based on a correct contractual analysis, had the virtue of certainty for the employer, who knew that he had terminated the contract when deciding to accept repudiation and notify termination. It did not create hardship for an employee, who was either left with sufficient time in which to make a claim in the ET or, if not, could apply for an extension of time on the ground that it was not reasonably practicable to present the complaint in time.

Discussion and conclusions

[26]It would be wrong to assume that the rather legalistic point taken on this appeal affects only a few cases or that the exercise of the judicial discretion to extend time would usually be available.[27]For a range of reasons there are claimants who do not present their complaint until late in the 3 months period allowed by the legislation. Sometimes there are valid reasons for not rushing off to the ET, such as avoiding unnecessary expenditure of effort, time and money when there is a possibility of negotiating a settlement without proceedings.[28]The more frequent explanation for delay is, however, legally inexcusable: the understandable human tendency to put off doing nasty things, such as suing someone, for as long as possible. That tendency is all the more understandable when many ET claimants are without legal advice or a representative to assist them. The claimant who puts off presenting a complaint until the last moment runs the risk of things going wrong and of being left with too little time to put them right. This court recently had the case of a mother and her daughter, who spent Boxing Day 2006 completing and faxing an unfair dismissal complaint to the ET. It was the last day of the 3 month period in their case and was not perhaps the best day for issuing legal proceedings.[29]As Lloyd LJ observed in the course of argument the practical point in issue on this appeal is whether the employer or the employee should bear the risk of a dismissal letter not arriving or not being read the day after being posted.[30]Gisda’s contractual approach, which puts the risk on the employee, finds support in legal logic. The summary termination of a contract of employment is usually the act of the employer. Gisda said that its termination of Miss Barratt’s contract took effect when it decided to accept her misconduct as a repudiatory breach and posted the dismissal letter. There was nothing more that Gisda needed to do in order to terminate the contract.[31]Gisda in fact did exactly what it told Miss Barratt it would do. It sent a letter on 29 November and it arrived at Miss Barratt’s address in the ordinary course of events on 30 November 2006. The contractual termination was not legally dependent on Miss Barratt’s actual knowledge of Gisda’s termination of her contract by acceptance of her repudiatory breach. Under the law of contract termination can take effect before actual communication of termination to the employee. Miss Barratt’s ignorance of the termination could make no difference to the legal validity of what Gisda had already done. As a matter of contract law Gisda had not failed to do something which it ought to have done to terminate the contract.[32]The jurisdictional difficulties in which Miss Barratt finds herself are, it was submitted, the result of her own failure to act promptly, once she knew of the dismissal. It was for her to ensure that she presented her complaint in what was left of the statutory 3 month limitation period. It was reasonably practicable for her to present the complaint before that period expired. If it had not been reasonably practicable, her remedy would have been to obtain an extension of time. That discretion would deal with any unfairness resulting from the employee being left with less than 3 months in which to present the complaint.[33]Gisda’s contractual analysis is certainly possible as a starting point in construing section 97(1), which refers to a contract of employment and to its termination, either by notice or without notice. It does not follow, however, that the correct construction of the statute is controlled by contractual considerations. I would make the following general points.[34]First, the context is statutory. 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 specifically designed and defined for the purposes of a legislative scheme of employment rights based on a personal contract. They include the right not to be unfairly dismissed and the right to have 3 months in which to present a complaint to the ET 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 is 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”?[35]Secondly, the critical act triggering the time limit is that of the employer. In many instances of summary dismissal the problem in this case will not arise in practice, because the employee will be present when fired, direct, face to face. Termination of the personal contract by the employer and the relevant knowledge of the employee will be simultaneous. The employer decides how and when to break the bad news that starts the clock running against the employee. When and how the summary dismissal is notified is outside the employee’s control. As confirmed by counsel at the hearing, more and more employers decide to postpone breaking this unpleasant and potentially litigious news to the employee by choosing to notify the outcome of a disciplinary procedure or a redundancy exercise by letter. It is not uncommon nowadays for people to be sacked by e-mail.[36]Thirdly, there is the need for fairness in the dismissal process. That is what the employment protection legislation is intended to achieve in the workplace. Where the employer has decided to notify dismissal by letter there is much to be said for the termination taking effect in circumstances similar to the face to face confrontation, that is when the employee actually knows his fate. The legislation gives the employee 3 months, not 3 months less a day or two, in which to take action. An employee cannot reasonably be expected to take action unless and until informed of the dismissal on which to take action. The proposition that an employee may be summarily dismissed and that time may begin to run against the employee before the employee actually knows of the dismissal sits uncomfortably with a personal contract and with the scheme of the legislation that an employee is entitled not to be dismissed unfairly and to have 3 months, and no less, in which to present a complaint of unfair dismissal.[37]Fourthly, there is precedent and the role of related considerations of certainty in practice and consistency in approach. It is true that the judgment of an expert appellate tribunal presided over by a future Law Lord and followed for nearly 30 years without challenge is not binding on this court. I would, however, need to be given a very good reason for unsettling or departing from that judgment, which has apparently been generally accepted and acted upon for so long (see, for example, Halsbury’s Laws 4th ed reissue 2005 Vol 16 (1B) paragraph 639 footnote 6) in preference for some other construction of the legislation. It is not self evident that the decision in Brown produces injustice, uncertainty or difficulty in practice. It does not appear to have been criticised as an erroneous or inconvenient decision. No evidence has been adduced to show that it has caused problems for users of the tribunals, for practitioners or for the tribunals themselves. I would be in favour of leaving well alone, unless it was plain that the decision was both legally wrong and productive of injustice.[38]Fifthly, absence of legislative intervention. The approach of the EAT in Brown has survived nearly three decades without legislative amendment, even though there have been parliamentary opportunities to eliminate legal error, manifest injustice or practical inconvenience from the operation of employment protection laws.[39]After the oral hearing the court received additional written submissions from each side following a request by the court to comment on a number of authorities not cited in oral argument, but noted in the footnote in Halsbury’s Laws mentioned above. The court is grateful to counsel for their researches and comments.[40]The cases are not directly in point on the issue of time of termination of contract by letter to an employee. Widdicombe v. Longcombe Software Limited [1998] ICR 710 was an unfair dismissal case which lends some support to the general proposition that ambiguity as to notice of the date of termination is strictly construed against the employer. Octavius Atkinson v. Morris [1989] ICR 431 was an unfair dismissal case which shows that contractual entitlements and obligations under a contract of employment may 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. RJ Temple plc UKEAT/0748/03/LA, [2003] All ER (D) 327 (Dec) was a case of an employee accepting, by fax, repudiatory breach by his employer. Termination took place at the date of receipt of the fax rather than the later date when it was read. The case supports the general proposition that “the effective date of termination” in unfair dismissal law is not necessarily the date yielded by contractual analysis. It also emphasised the importance of certainty.[41]In short, I conclude that this court should not overturn a settled construction of the employment rights legislation on the basis that it was not appreciated by the EAT in Brown that the true construction of section 97(1)(b) of the 1996 Act is in fact governed by a general legal principle that the giving or receipt of the notifying letter is by itself effective to terminate a contract even a personal contract. The language in which the statutory provisions are expressed is reasonably capable of the purposive construction in the Brown line of cases.

Result

[42]I would dismiss the appeal. There was no error of law in the ET’s decision. The EAT correctly dismissed the appeal against it. The claim for unfair dismissal was brought in time. The ET has jurisdiction to consider it and should now proceed to do so, almost three years after Miss Barratt was sacked by Gisda.[43]The effective date of termination (EDT) of a contract of employment is a statutory concept which performs the function (among others) of marking the start of a relatively inflexible period of three months within which an employee can present to an Employment Tribunal a claim alleging unfair dismissal. It is therefore highly desirable that it should not be difficult to work out what the EDT was in any given case. The EAT (Browne-Wilkinson J presiding) said as much in Robert Cort & Son v Chapman [1981] ICR 816 at 821 F-H.[44]Mummery LJ has set out at paragraph [4] the relevant parts of the statutory definition of the EDT in section 97(1) of the Employment Rights Act 1996. Since Miss Barratt’s employment was terminated summarily, not by notice, the question is when the termination “took effect”. At first sight, since employment is a matter of contract, when it was terminated depends on the general law of contract as it applies to employment contracts.[45]If an employer dismisses an employee summarily, that is understood as being the acceptance by the employer of a repudiation of the contract by the employee. In Robert Cort & Son v Chapman, the EAT held that the contract came to an end on dismissal by the employer, even if the dismissal was by too short a notice or summary dismissal was not justified. In that case, the dismissal was summary, and was expressed to take immediate effect, but the employer paid the employee a month’s salary in lieu of notice. If the employee had been given 4 weeks’ notice, to which he was entitled under the contract, he would, by the end of the notice period, have completed the then minimum period of continuous employment so as to be able to claim for unfair dismissal. It was held that the termination of his employment took effect on the date on which the notice was given.[46]Just before the passage to which I referred in paragraph [43] above, the EAT referred to the possibility that “the date of the final termination of the contract is not necessarily “the effective date of termination” …; if, as in the case of repudiation, further full performance becomes impossible, that will be the relevant date”. What was envisaged in that case as potentially remaining outstanding was a claim for damages for breach of contract, in particular for terminating the contract by too short a notice. It does not seem to me that the existence of such a claim means that the contract itself had not come to an end. Browne-Wilkinson VC said as much in the Court of Appeal in Octavius Atkinson & Sons Ltd v Morris [1989] ICR 431 at 437B.[47]Accordingly, it seems to me that, in principle, to find out on what date the termination of the employment contract took effect, resort should first be had to the general law of contracts of employment.[48]Often the precise date on which a contract is brought to an end will not matter for the purposes of the general law, and in fields such as landlord and tenant the question whether, and if so when, a notice is given is generally governed by either statutory or express contractual provisions. In a rather different field, that of charterparties, there is the example of The Brimnes [1973] 1 WLR 386 (Brandon J) and [1975] 1 QB 929 (Court of Appeal), where the issue was whether the owners of a ship had exercised their right to withdraw the ship from a time charter on grounds of non-payment of hire before the charterers had paid the hire, albeit late. The notice to withdraw was found to have been sent by telex to the charterers’ office at about 17.45 hours on 2 April, which was during the charterers’ normal business hours, but the judge also found that it was not noticed by anyone in the charterers’ office until the following morning, despite the fact that the secretary whose responsibility it was to see that any incoming telexes were dealt with was in the office at the time of receipt. The judge and the Court of Appeal held that the withdrawal notice was given at the time the telex was received, rather than at the time when it was observed and read. Of course, that was a case where the recipient was not expecting the notice as such, but where the charterers’ business was such that they might receive any number of communications, expected or not, and they had a telex line for the purpose of receiving such communications, as an ordinary incident of a commercial office. It was not necessary to decide what would have been the position if the telex had been sent outside business hours. It was not disputed that it was necessary for the owners to prove that the notice had been received in the charterers’ office: mere sending without receipt (if that was possible in the case of a telex) would not have been sufficient.[49]Cases in the employment field provide a variety of situations where the EDT has been in issue. In Potter v R J Temple plc (EAT, Judge Richardson presiding) UKEAT/0748/03/LA, the employee’s solicitor sent a fax to the employer’s offices which arrived at 8.21 pm on a Friday evening, professing to accept, “effective forthwith”, the employer’s repudiation of the employment contract. Consistently with that, the employee did not attend for work thereafter. There was no evidence that the fax was read until the following week. The employee had to argue that his fax was not immediately effective, because his claim had not been submitted until exactly three months after the day on which the fax was sent. He relied on The Brimnes for the proposition that, unless an employee of the company had happened to be in the office out of normal hours, and had seen it on the Friday evening or over the weekend, the fact that it was sent outside business hours meant that it was not treated as received until the next normal business hours thereafter, on the Monday morning. Conversely, the employer argued that the fax notice was effective as and when received (certainly in this case where it was expressed to be effective at once). The EDT was held to be the date on which the fax was sent and received, not that on which it was read.[50]In George v Luton Borough Council (EAT, Judge Serota QC presiding) EAT 0311/03/RN, the employee wrote to the council on 30 July, resigning with effect from 31 July. The letter was received by the council on 1 August, and opened and date stamped on that day, but was not, or may not have been, seen by the responsible officer until 2 August. The EAT held that the notice was effective, so as to terminate the contract, on 1 August, when it was received by the council and opened, albeit not seen until later by an officer of the council with relevant responsibility. The cases of Brown and McMaster, to which I am about to turn, were both cited in George, though not directly in Potter.[51]By contrast, in Brown v Southall & Knight [1980] ICR 130 (EAT, Slynn J presiding), the employer’s letter dismissing the employee was posted on 20 July, but did not arrive until after the first post on 21 July, by which time the employee had left home to go on a pre-arranged holiday, albeit earlier (by one working day) than his employers had expected him to do. He did not in fact see it until he returned from holiday on 31 July. If that was the EDT, he would have completed the necessary minimum period of continuous employment in order to make a claim. The EAT held that it was not enough for the employer to post a dismissal letter. The termination did not take effect until the employee had either been told of, or had had a reasonable opportunity of reading, the notice of dismissal. The EAT did contemplate that, if the addressee of the letter deliberately did not open it or went away to avoid reading it, he might be debarred from saying that notice of his dismissal had not been given to him, but otherwise they decided that, for a notice to an employee, at any rate, the notice must get to the mind of the employee, not merely, in his absence, to his address.[52]Similarly, in McMaster v Manchester Airport [1998] IRLR 112 (EAT, Morison J presiding) a letter giving summary notice of dismissal was received at the employee’s home on 9 November, but the employee was away from home on that day and did not see the letter until 10 November when he came back. The EAT followed Brown in holding that the EDT was 10 November, with the result that the claim was in time.[53]In the present case, the employee was anxious to know the result of the disciplinary hearing held on 28 November 2006, and was told that the employer would write to her on the following day, which it did. The letter was sent by recorded delivery and was received at her home on the day on which it could have been expected to arrive, being signed for by her partner’s son. Her absence from home was not attributable to any wish to evade receipt of the letter, but she could have enquired by telephone of her partner or his son, who remained at the property, whether such a letter had arrived and, learning that it had, she could have asked that it be read to her.[54]The Employment Tribunal (Employment Judge Hoult, sitting alone) held that the employee did not have a reasonable opportunity to read the letter while she was away, having said that her not having telephoned to ask that the letter (if it had been received) be read over to her was not “an unreasonable position to adopt given the reason for her absence from the home”. Bean J, sitting alone in the EAT, upheld this view, saying that Slynn J’s reference to a “reasonable opportunity” must mean “an opportunity which the Claimant could reasonably be expected to take”.[55]Mr Greatorex challenged this as a matter of law, suggesting that a degree of objectivity was required in assessing whether an opportunity which existed was “reasonable”, and it should not only be judged from the subjective point of view of the claimant. I agree with him that, in principle, an opportunity to “read” the letter could include an opportunity to have it read over to the addressee on the telephone, or to have its contents communicated in some other way. I do not agree that the Employment Tribunal’s judgment on this is one which involves an error of law.[56]Thus the appeal depends on Mr Greatorex’ more fundamental submission that posting, or at any rate delivery, of the letter containing the dismissal notice to the employee’s correct address is sufficient by itself.[57]He first submitted that posting would have been sufficient, even without delivery, as an unequivocal overt act by the employer, but I cannot accept that. In Edwards v Surrey Police [1999] IRLR 456, the EAT (Morison J presiding) said that:
“It seems to us perfectly clear, as a matter of general principle, that before a contract of employment can be terminated there must have been communication by words, or by conduct, such as to inform the other party to the contract that it is indeed at an end.”
[58]In that case the employee had written a letter on 17 July the terms of which were “clear and unambiguous in its intention of effecting an immediate termination of her contract of employment”. The Employment Tribunal had made no finding as to when it had been received by the employer, but had held that the date of the letter was the EDT. The EAT allowed the employee’s appeal. Even if the letter was delivered to the employer on the following day, the claim would have been in time, so there had to be a finding as to when it was delivered. That decision has no bearing on the other issue on this appeal, namely what amounts to receipt by the addressee, but it shows that receipt (in some sense at least) is essential. I see no distinction, in this respect, between a notice from the employee and one from the employer.[59]Mr Greatorex relied on London Transport Executive v Clarke [1981] ICR 355 in this respect, but it seems to me that the issues there were quite different, and it was unnecessary to consider on what date the contract came to an end, so I do not find that case helpful.[60]He also relied on the recent case of Kirklees Metropolitan Council v Radecki [2009] EWCA Civ 289. The facts of that case were more complex, involving an assessment of the EDT in the context of protracted negotiations between employer and employee. The employer contended that the EDT was 31 October 2006, but the claim had not been brought until March 2007, so that the employee had to show that the contract had not been terminated until after a date in December 2006.[61]The claimant had been suspended from duty, and disciplinary proceedings had been started, but the parties embarked on negotiations with a view to an agreed termination of the employment. By October 2006 the negotiations were proceeding on the footing that 31 October 2006 would be the last day of his employment, but no agreement had been reached by that date, and negotiations continued for a time thereafter. On 1 November his representative was told that he would not be paid for November, and it was held that he knew this on or very soon after that date, as he also knew, by mid November, that he had not been paid for that month, as he would otherwise have been by then. The employer’s final offer in the negotiations was made on 6 November. The claimant sought advice from solicitors about the offer, and in February 2007 he rejected the offer. The Employment Tribunal (Employment Judge Hildebrand sitting alone) held that the EDT was 31 October 2006, but on a basis which the EAT rejected, namely by relying on the terms of the negotiations. The EAT (Judge Serota Q.C., sitting alone) held that the contract had not been terminated until early March 2007, so that the proceedings were within time, but he said that, if he was wrong as to that, the EDT would have been when the claimant realised, or ought to have realised, that his employment had been terminated, which he put at soon after 31 October 2006, relying on the statement that he would not be paid after October and the fact that he was not paid after that month, both of which facts he knew soon afterwards On that basis the EDT would have been soon after 31 October 2006, in practice probably mid November, so that the claim would have been out of time.[62]The Court of Appeal agreed that the Employment Tribunal had been wrong, because the negotiations could not be relied on as such, but they also held that the EAT had been wrong to hold that there had been no termination until March 2007. The members of the court disagreed, however, as to whether the Employment Tribunal had made a finding as to the effect of the employer’s conduct in November. Rimer LJ considered that it was necessary to remit the case for a further finding as to when the EDT had occurred. Rix LJ, with whom Toulson LJ agreed, held otherwise, saying that the Employment Judge had held that the employer had brought the claimant’s employment to an end by paying him only up to 31 October 2006, of which the claimant knew within a fortnight.[63]Mr Greatorex relied on this as showing that the employer’s unequivocal act had brought the employment to an end, even though the employee did not know of this until later (admittedly only a little later), and as supporting his argument that the EDT could occur before the employee had been told, directly or by conduct, that the contract was treated as at an end. Rimer LJ, in the minority on one issue, said at paragraph 39, referring back to Robert Cort & Son Ltd v Chapman and to the passage to which I have myself referred at paragraph [43] above, “it is important that there should be no scope for doubt as to the EDT; the employee needs to know when it is and needs to know that at the time of the EDT.” But since he was in the minority on the question whether the EDT had been established by a prior finding, it does not seem to me that this dictum can bear the weight which Mr Mullan sought to put on it for the Respondent.[64]The unequivocal act in that case was the non-payment of salary for any period after October 2006, preceded by a statement to the claimant’s representative that this would happen, so that it could not have been taken as accidental or unintended. He knew of the prior statement promptly after his representative had been told; he knew of the non-payment soon after payment would otherwise have occurred.[65]It seems to me that this decision does not cast a great deal of light on the question arising in this case, namely when the EDT occurs if the employment is brought to an end by a letter communicating dismissal, though it is consistent with a position in which the employee does not know of the actual EDT until afterwards, albeit not long afterwards in that case. It seems to me that, where the employer chooses to communicate its dismissal of the employee by letter, it must not only write but also despatch the letter, and it will know that the employee will not know that he has been dismissed until and unless the letter arrives. In those circumstances, I consider that the dismissal is not complete until the letter has been delivered. If the letter is committed to the ordinary post, the employer runs the risk that it may go astray, or it may be delayed so as to arrive later than would normally have been expected. That degree of uncertainty is inherent in use of the post. Use of recorded delivery gives greater certainty, though of course if no-one is present to sign for it, the letter may not be delivered at once, may not be collected from the post office by the addressee within the time normally allowed, and may eventually be returned undelivered. In the present case, the letter was delivered to the right address, even though the claimant was not there to receive it on that day or for several days thereafter.[66]For the employer, Mr Greatorex’ next argument was that delivery of the letter to the employee’s address known to the employer was sufficient in itself, even if the employee was not present at the time. He prayed in aid the fact that the employee knew that the letter was to be written, and when it was intended to be sent to her (as it was). Logically these are irrelevant to his submission, though it might not be irrelevant for the employer to have known, for example, that the employee would not be at the relevant address at the time when the letter might be expected to be delivered.[67]The essence of Mr Greatorex’ submission is that it is sufficient for the employer to send a letter to the employee, addressed to the correct address, informing him or her of the dismissal and for the letter to be received at the address. The employer has by then done everything that can be expected of him to terminate the employment, and the process has been completed by delivery, and he is and should be entitled to treat the contract as at an end, so that no further wages or other employment benefits are due to the employee. There could be an element of uncertainty as to when a letter is delivered, for reasons already mentioned. But subject to that, the employer should not be subject to any greater degree of uncertainty as to whether the contract is still subsisting, which might arise from the employee’s temporary absence from the premises, or some other unforeseen event (such as an accident or illness) which prevents the employee from being aware of or reading the letter on or after its delivery.[68]Bean J at paragraph 17 gave instances of employees who might for any number of legitimate reasons not be at home when a dismissal letter arrives: a person who lives alone and goes on holiday, or a commercial traveller, or a student living at home in the holidays and at a university residence during term, or of the individual fortunate enough to have a second home to which he or she goes at weekends. Not all of these examples would necessarily be likely to arise in relation to a summary dismissal letter, but one can imagine a number of cases where a period of some days, or even some weeks, might pass without the letter actually coming to the attention of the recipient.[69]Mr Greatorex, on the other hand, asked rhetorically what the employer is to do in such a case, assuming that he is unaware of the absence. Must he go on paying the employee until he knows that the letter has been seen and read?[70]It seems to me that these submissions on behalf of the employer have great force. The employer has taken a clear decision, has acted on it by writing to the employee, and posting the letter to the correct address and, subject to proof of delivery, the employer should be entitled to regard the dismissal as complete by then, the contract of employment as having been terminated, and neither party as being under any of the continuing obligations of the contract.[71]Mummery LJ in his judgment rejects this argument for a number of reasons, at paragraphs [33] to [37]. The first reason given is that EDT is a statutory phrase and concept, not a term of contract law. When termination of a contract “takes effect” may not be the same as when, as a matter of general contract law, it is brought to an end, by whatever means. I accept that there are some situations in which the statutory phrase, and the purposes for which it is relevant, require a different approach from that which would be adopted as a matter of general law to the issue whether a contract has come to an end. But it seems to me that, in general, the test should be that applicable under the general law, and a different approach should only be adopted for good reason, so as to avoid the date depending on “subtle legalities” (see Robert Cort & Sons v Chapman, as referred to at paragraph [43] above). I do not see that a rule that the date of delivery of a dismissal letter is the relevant date, whether or not the addressee was at home to receive it or see it on that day, would make the EDT depend on a “subtle legality”.[72]His second factor is that it is for the employer (in this type of case) to take the initiative, and to choose how to communicate a dismissal. If the employer chooses not to communicate this face to face, whether orally, or in writing by a letter handed over in person, or by a combination of these methods, then it is the employer that should take the risk of the letter not arriving, or not coming to the employee’s attention for some time. This also lies behind the reasoning on his third factor, fairness in the dismissal process. I see some force in this, though equally, it may well be justifiable for the employer not to announce the result of the disciplinary hearing, such as was held in the present case, at once, but to reflect on the course of the hearing and what was said, before coming to, and articulating, a considered decision. It seems to me that it would be undesirable to discourage employers from taking time after such a hearing to reflect on the outcome and to formulate their reasons for dismissal. We are not concerned in the present case with sacking by email or text message, though I am not sure whether any special legal considerations apply to either of those means of communication, in this context. This employer used a perfectly normal method, namely postal service by recorded delivery.[73]An important element in his third factor is that employees should have the full period of three months from when they actually know of the dismissal in which to take action, not three months less a few days or weeks. As to that, it seems to me that the three month period, like any time limit for taking proceedings, is to an extent arbitrary. One can glean from section 111(2)(b) that, in normal circumstances, the three month period was expected to be a period within which it would be reasonably practicable for the employee to bring a claim. The power to extend the period afforded by that section is limited, but it does provide an opportunity of latitude for the employee if for some reason the period within which he was able to act was significantly shortened below 3 months for reasons beyond his control. One such case would be if he did not become aware of the dismissal for a significant period, so that he had noticeably less than 3 months in which to respond. For my part, I do not regard the possibility that (to take this case as an example) the claimant would, on Mr Greatorex’ submissions, have had three months less three or four days from the date on which she read the letter in which to present her claim, rather than the full period of 3 months, as being inconsistent with the scheme of the legislation. Kirklees Council v Radecki seems to me to support that view. In the light of that case, and because of the general considerations mentioned, I do not accept that the employer should bear the risk of the employee not seeing or reading the letter on the day on which it arrives at the correct address.[74]It seems to me that it is more important that both the employee and the employer should know with reasonable certainty when the EDT was. I can see that, if an employee goes away from home for some days, and returns home to find a dismissal letter in a pile of post delivered in the meantime, he or she may not necessarily know for certain on which day it was delivered, even though there may be some clues such as the date of the letter and the date (if legible) of the postmark. But that problem does not arise in the present case, and it is likely that it could be handled with reasonable certainty in most cases, with inferences that the letter was delivered on the next postal delivery day after the date on which it is postmarked or (if that is not, or no longer, clear) after the date which the letter bears. Mr Mullan relied, to the contrary, on the words of Rimer LJ in Kirklees Metropolitan Council v Radecki which I have quoted at paragraph [63] above. However, as I said there, it does not seem to me that what he said was consistent with the decision of the other judges in the case, and it cannot be taken as authority.[75]Mummery LJ’s fourth factor is respect for EAT authority which has been consistent since 1980, and which so far as we are aware has not caused controversy in principle or difficulty in practice. I recognise the weight of that factor, and feel proper diffidence in suggesting a departure from it, especially in differing from a former President of the EAT. However, the point has never been considered in the Court of Appeal, and it does not seem to me that the decisions of the EAT are altogether as consistent as might have been thought. Brown and McMaster are broadly consistent, though not identical in their detailed pronouncements. Potter, however, seems to me to be inconsistent with them. George is not inconsistent, since it proceeded on the basis that delivery to the council’s offices, where the letter was opened on the same day, was sufficient delivery to the employer. That is consistent with either view of the law. The importance of the case is that, because it was cited in Potter, and because it includes citations from Brown and McMaster, we can proceed on the basis that the EAT in Potter knew about these earlier decisions, even though they are not recorded as having been cited as such in the decision in Potter.[76]It is true, as Mummery LJ notes at paragraph [37], that Parliament has had numerous opportunities to amend the definition of EDT since 1980, and has not taken advantage of them. I do not regard that by itself as a significant factor. The general definition given by section 97(1)(b) is one which, as it seems to me, Parliament might well regard as being one whose precise ambit is best left to the tribunals and the courts to work out. I accept that the absence of litigation in which Brown has been questioned since 1980, until now, is of some significance, but now that the point has come to the Court of Appeal, it seems to me that we ought to grasp it and decide it as a matter of principle, and not be diverted from that task by the fact that it has not had to be done at any time since 1980. Moreover, to the extent that the point has been touched on in the Court of Appeal, in Kirklees Council v Radecki, it seems to me that the court’s decision is not altogether consistent with the line taken in Brown or McMaster, though of course those cases were not directly in issue.[77]I am persuaded by Mr Greatorex’ submissions that the correct view of the law is that an employment contract is brought to an end by a dismissal letter sent by or on behalf of the employer to the employee at his or her address, and delivered to that address, and that it comes to an end on the date of such delivery, regardless of whether or not the employee was there at that time or later on that day, or did not see the letter, for whatever reason, until a later date. On this view, both Brown and McMaster were wrongly decided on their facts.[78]For my part I would allow the appeal and hold that the EDT was 30 November, because the dismissal letter was effective to bring the contract to an end on the day on which it was delivered to the employee’s address, with the result that the unfair dismissal claim was out of time.

Sir Paul Kennedy:

[79]I was at first attracted by the submissions made on behalf of the appellant, as encapsulated by Lord Justice Mummery at paragraphs 29 to 31 of his judgment, but in the end I have come to the conclusion that the appeal should be dismissed, for the reasons given by Lord Justice Mummery.

Cited in 10 later judgments

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