Face-to-face dismissal may avoid a day in court

Employers have been warned they could face legal action if they let staff know of their dismissal in writing - because staff can claim they did not know their contract had ended.

The recent Court of Appeal decision in Gisda Cyf v Lauren Barratt has confirmed the relationship between the effective date of termination and an employee's knowledge of dismissal communicated by a letter.
In this case, Lauren Barrett filed an unfair dismissal complaint in March 2009 after being sacked via a recorded delivery letter dated 29 November. The letter was not read by Barrett until she returned from a period away from home on the 4 December. Her employer, Gisda, alleged that the claim could not be brought due to the three-month time limit having elapsed. The Court of Appeal ruled that the date from which Barrett read the letter was considered as the date the contents of the letter came into force, meaning her claim was within the three-month period and therefore valid.
A contract of employment involves two parties and both parties need to be aware the contract has come to an end, thus dismissal of an employee cannot be effective until the employee knows they have been dismissed. As Gisda demonstrates, the longer an employee is unaware of the fact that they have been dismissed, the longer they have to bring a tribunal claim. Employers who breathe a sigh of relief when the three-month time period expires will not be so certain if the dismissal has not been in person. But as in this case, it will be difficult for the employer to show that the employee did not know about the dismissal earlier than stated, since the employer would not be present at the time.

There are further implications when a dismissal is notified in writing. Many employers allow an appeal within a certain number of days of the letter of dismissal, so if the appeal is not brought within that time period then the appeal is often turned down. If the employee later states they were not aware of the dismissal and right of appeal until after the time period because they were away when the letter was sent, then a tribunal could find that the employer acted unfairly in refusing the appeal. This would then render the dismissal unfair.

Further, if an employee is nearing the first anniversary of employment an employer may take the opportunity to dismiss that employee without following due process, as the employee does not have the right to bring a claim for unfair dismissal if they have been employed for less than one year. But if the employee is dismissed in writing and is not aware of this until after they have accrued a year's service, they will have the right to claim unfair dismissal.  

Not only is it good HR practice to dismiss an employee in person, the employer can also ensure that the employee is aware of the dismissal and the time limit for that employee to bring such a claim will run from that communication. An employee who is dismissed in person and given a face to face explanation is less likely to bring a claim than one who merely receives a letter to let them know they have lost their livelihood. Tribunals frown on employers who don't dismiss in person, and while this may not make the dismissal unfair, it may sway the tribunal's judgment in borderline cases.

In view of the above concerns, it is strongly advised that wherever possible employees are told about their dismissal face to face.

Stuart Jones is a partner in the employment department at Weightmans