When does a dismissal take effect?
25 May 2022
If an employer writes to an employee to notify them of their dismissal, when does that dismissal take effect? This apparently simple question has been the subject of considerable litigation, including cases in the Supreme Court, and the case below is another example.
In Sault v Empire Amusements and Cheeky Monkey’s Soft Play Centre, Ms Sault had some time off work with mental health issues in the early part of 2020 and had not been in touch with her employer for several weeks. On 7 March 2020 her employer claimed to have hand delivered a letter to her home address asking if it was her intention to return to work and stating that if they did not hear from her within 7 days they would terminate her employment. Ms Sault said she never received this letter, although she was at home on that date. The employer did not hear from Ms Sault and said that a letter terminating her employment with immediate effect was hand delivered to her home address on 15 March 2020. Ms Sault denied ever receiving that letter either, and again said that she had been at home on the date it was apparently delivered.
On 4 July 2020, Ms Sault returned to work and was told by the café manager that her employment had been terminated on 15 March 2020. Ms Sault submitted a claim of unfair dismissal in the Employment Tribunal on 6 October 2020, and as a preliminary point, the Tribunal had to decide when she had been dismissed in order to determine if her claim had been brought in time.
Time limits in unfair dismissal claims
A person has three months minus one day from their effective date of termination to submit a claim for unfair dismissal. This can potentially be extended by any time spent in ACAS early conciliation, which is a scheme designed to assist the parties in settling the potential claim before it reaches the Employment Tribunal, if possible. In this case, early conciliation lasted between 3 and 25 September 2020 and so if Ms Sault had been dismissed on 4 July 2020, her claim was in time, as she had until 25 October 2020 to bring it. If she had been dismissed on 15 March 2020, then she was out of time.
The Employment Tribunal’s decision
The employer had no proof of the delivery of the letter. In the period before Ms Sault returned to work in July, she had sent text messages to her employer, and there was nothing in those messages to indicate that she believed her employment had been terminated. The Tribunal held that, on the evidence, the letter the employer claimed to have hand delivered was in fact not delivered, and therefore Ms Sault was in time to bring her claim. Her case will now go to a final hearing, unless it can be settled before then.
One point which was not argued in this case, and which would have been relevant had the Tribunal held that the letter had been delivered, was when the letter had been read. It has long been established that a dismissal is only effective when it is communicated to the employee, and that means the employee reading the communication or at least having an effective opportunity to do so. This touches on an issue faced by employers when an employee goes AWOL or ‘Ghosts’ them and the employer wishes to dismiss them, as we discussed in our previous article.
When giving notice of dismissal to an absent employee, it is best for employers to try and communicate this in as many ways as possible and to obtain evidence to demonstrate that notice has been given. In Ms Sault’s case, the employer said that one person went to her address and they just put the letter through the post box. They did not knock on the door and try to speak to her, nor did they take any photos of themself posting the letter, and there were no witnesses present.
Although it should usually be fairly simple to show when a dismissal takes effect, this case is an example of how things can become complicated and how this can affect whether any subsequent Employment Tribunal claims are brought in time. We have many years of experience in assisting employers on this sort of issue and taking legal advice can put you in a much stronger position than the one this employer found themselves in.
If you are an employer dealing with issues around dismissal, then we can help. Please call us on 01243 836840 for a no obligation chat, or email us at [email protected].