The timing of notice of termination.

I recently drafted a defence to an Employment Tribunal claim where an employee had failed to attend the disciplinary hearing at which their employment terminated by reason of gross misconduct.  Let’s call the date of that hearing date A.  The employer duly then wrote to communicate the finding that had been made on Day A to the employee in a letter dated date B.  The employee will then have received it on date C. Which of these three dates is the effective date of termination? As long as there is no evidence that the employee has not opened the letter, the effective date of termination is the date on which the employee learns of their dismissal, so date C. This was established in the 1980s in a case called Brown v Southhall & Knight. This was confirmed more recently in the 2010 case of Gisda Cyf Vs Barrett.  The court confirmed that it is when the employee actually reads the letter not the date on which it was written, posted or delivered.

This gives employers difficulty where an employee is on holiday or perhaps temporarily living somewhere else and only visiting their postal address occasionally.  The reason the courts have determined the cases in this way is that the time limit for bringing a claim starts ticking from the effective date of termination, and they view it as an essential part of the employee’s protection of the law that they have been informed or have the chance of finding out that they’ve just been dismissed before the time is triggered.  The courts have also confirmed this is the case where for example, the dismissal is communicated to a third party such as the solicitor. It will not be the date on which the solicitor is told, it is the date in which the solicitor tells the employee, which may of course be a lot later.

The same rules kick-in when instead of a summary dismissal, notice is given.  Assuming that the contract of employment doesn’t say anything in particular about when notice is deemed to be given, notice again is effective when it is received by the individual.  This was important in a recent case affecting Newcastle Upon Tyne NHS Foundation Trust where a lady at risk of redundancy had a 12 week notice period and was on holiday when her notice of termination was sent to her home address.  By the time she came home and read it she had reached her 50^th birthday and this meant she was entitled to a more generous pension upon redundancy then had the notice been effective prior to her 50th birthday.

The moral of the story is that if there is a time critical situation (as in the redundancy case) you’ll need to take steps to try and ensure the employee physically receives and reads a notice at an earlier stage. This might mean, for example, pulling the employee in and physically giving them the letter.  Alternatively it might mean expressing in the contract of employment that notice is effective on the date that it is issued by the employer i.e. expressly changing this position.