It would seem Alan Sugar's a little tired of the "You're Fired!" catchphrase on The Apprentice, but the recent Supreme Court decision in Gisda Cyf v. Barratt shows there's a lot to be said for being direct when dismissing someone.
Gisda Cyf, a Welsh homeless charity, suspended Lauren Barratt on 19 October 2006, after it received a complaint about her 'inappropriate conduct' at a private party. The charity held a disciplinary hearing and told Ms Barratt that she would receive a letter on Thursday 30 November informing her of the outcome.
Ms Barratt knew that she was at risk of dismissal. But the episode just happened to coincide with another significant event in her life: her sister had just given birth. This was a particularly happy and significant circumstance since her sister had lost an earlier baby. Naturally Ms Barratt wanted to be with her sister, so she left Wales on the morning of 30 November and travelled to London to see her.
After she left, a letter arrived for her by recorded delivery. It was signed for by the son of Ms Barratt's boyfriend. She had not left instructions for it to be opened or read and so it was left, unopened and unread, awaiting her return.
Ms Barratt returned home late on Sunday, 3 December. She did not open the envelope containing the letter that evening. Indeed, it was not until the following morning, Monday 4 December, that she asked her boyfriend and his son whether any post had arrived. The son remembered that he had signed for a recorded delivery item. He found it among his school homework and handed it to Ms Barratt who, on reading the letter, discovered that she had been summarily dismissed for gross misconduct.
An internal appeal against the dismissal existed and Ms Barratt availed of it. She was unsuccessful in her appeal. It was dismissed on 19 December 2006. Ms Barratt still felt aggrieved, however, so on 2 March 2007 she lodged claims for unfair dismissal and sex discrimination with an employment tribunal.
Under the Employment Rights Act, a claim for unfair dismissal must generally be brought within three months of the last day of employment (NB. counting the last day of employment as the first day of the three month period). Depending on the view that one takes of the date on which Ms Barratt's employment was brought to an end then, her complaint was lodged either just within or just outside the three month time limit stipulated in the Act.
Ms Barratt, unsurprisingly, argued her last day of employment was when she read the letter on 4 December, which meant the claim was lodged within the normal three-month time limit.
Gisda Cyf, meanwhile, asserted it was the date on which the letter had been sent, the date it had been delivered, or, alternatively, on a date by which she should have inquired about its delivery -- which meant her claim was not submitted in time.
The Supreme Court found in favour of Ms Barratt. For the purposes of establishing the last date of employment where dismissal is communicated in a letter, the court held that a contract of employment does not terminate until the employee actually reads the letter or has a reasonable opportunity to read it.
In so holding, the court agreed that Ms Barratt did not have a reasonable opportunity to read the letter earlier than Monday 4 December. Even though she had phoned home while she was visiting her sister she was not obliged to ask about the contents of the letter.
The case will now pass to an employment tribunal to resolve Ms Barratt's claims for unfair dismissal and sex discrimination.
The case shows that an employer who wants to be certain that a dismissal has taken effect should dismiss in person wherever possible. If this is not practical for some reason, employees should be informed directly in other ways, for example over the phone. It is also good practice (and recommended by the Acas Guide to Discipline and Grievances at Work) to then confirm dismissal in writing.