Gisda Cyf v Barratt case: The facts

Miss Barratt worked for Gisda Cyf. She attended a disciplinary meeting on Tuesday 28 November 2006. At the end of the meeting she was told to go home and that she could expect to receive a letter concerning possible dismissal on Thursday 30 November. Miss Barratt was not at home from Wednesday 29 November until the evening of Sunday 3 December.

Gisda Cyf sent a letter by recorded delivery which arrived at Miss Barratt’s house on Thursday 30 November. The letter was signed for, but not by Miss Barratt as she was not at home. Miss Barratt phoned home whilst she was away but did not ask whether or not a letter from her employer had arrived. Miss Barratt did not open or read the letter until the morning of Monday 4 December.

Miss Barratt subsequently issued a claim for unfair dismissal against Gisda Cyf. An issue arose as to whether Miss Barratt had brought her claim within the three month deadline for unfair dismissal claims. If the date of her dismissal had been 30 November, then her claim would have been out of time. However, if her dismissal did not take place until 4 December, then her claim was in time.

The decision

At first instance the employment tribunal decided that the decision to terminate is effective when it is communicated. Therefore Miss Barratt’s dismissal did not take place until 4 December. Gisda argued that Miss Barratt had a reasonable opportunity to find out about her dismissal before 4 December, when she phoned home, because she was aware that she was due to receive a letter on 30 November.

However, the tribunal said that Miss Barratt was not obliged to ask about the letter when she phoned home and was entitled to read it when she got back. The tribunal did state that if Miss Barratt had gone away deliberately to avoid reading the letter or opening it, then she would not have been successful with her argument and her dismissal would have been effective on 30 November. However, the evidence did not show that Miss Barratt had gone away in order to avoid receiving the letter.

Gisda appealed to the employment appeal tribunal (EAT). However, the EAT agreed with the employment tribunal and decided that Miss Barratt was not dismissed until she read the letter on 4 December.

Gisda then appealed to the Court of Appeal. Unfortunately for Gisda, the Court of Appeal agreed with the EAT and the employment tribunal. The Court of Appeal said that the tribunal was correct when it decided that Miss Barratt did not have a reasonable opportunity of reading the letter before Monday 4 December. As such, her unfair dismissal claim was brought within the three month time limit.

The Court of Appeal commented that in most cases the employer will communicate the decision to summarily dismiss at the time, face to face. This may often be following an adjournment of the disciplinary meeting. This leaves no scope for doubt as to when the employee was dismissed. However, this does not always happen.

The court also commented that the suggestion that an employee could be dismissed and that their limitation period for making a claim could start to run before the employee knows that they have been dismissed, was not desirable.

Comment

The conclusion in this case is consistent with previous case law in this area. However, it does provide for some uncertainty as to the effective date of termination of an employee’s employment. If the court had decided that the dismissal was effective on the day the letter was received at the employee’s house, then there would have been no doubt that the termination date was 30 November. The court’s decision does mean that where there is ambiguity over the actual date of dismissal, the risk is borne by the employer, not the employee. Actual knowledge of dismissal is required by the employee before the notice is effective.

Practically speaking, it is better for an employer to communicate a decision to summarily dismiss face to face. This can then be followed up in writing. As this is not always possible, if an employee is being informed of their dismissal by letter or email, all reasonable efforts should be made to ensure that the employee has received and read the letter/email. Otherwise, the decision to dismiss is unlikely to be effective until such time as the employee actually knows about it.

Rise in prosecutions for employing illegal workers

Businesses are being warned to undertake more rigorous checks into applicants’ backgrounds as the number of prosecutions for employing illegal workers increased over 500%, according to Giant Precision a business process outsourcer.

According to information they obtained from the Home Office, the introduction in February 2008 of the new penalty system has led to 233 prosecutions of employers for employing illegal workers. This compares with no more than 40 cases per year previously.

Matthew Brown, Managing Director of Giant Precision said:
“The new civil penalty for employers who hire illegal immigrants has made a big difference to the UK Border Agency’s activity in bringing cases against employers. More employers than ever before are finding themselves hit with big fines.

The new regulations are tough on employers and recruiters who may have checked into candidate’s backgrounds and been duped by fraudulent documents. Even if checks are carried out, the UK Border Agency can still levy fines if it deems recruiters and employers have not been sufficiently rigorous.”

For many years, there have been requirements for employers to verify the identity of their workers in order to prevent illegal working. Penalties under the Immigration, Asylum and Nationality Act 2006 were increased from 29 February 2008. The Home Office UK Border Agency website is regularly updated to show a list of employers fined since the introduction of the revised penalties.

Employers can avoid both a civil penalty and committing a criminal offence by checking, on recruitment, that workers have a right to work in the UK. To obtain this protection, employers must make the checks before the worker starts work.

There are two lists of acceptable documents for checking identity. List A contains items such as a British passport, which have no time limits on working in the UK. List B contains a list of documents which carry restrictions on the amount of time individuals will be able to spend in the UK. Employers now have to carry out annual checks for those workers whose documents appear on List B, such as work permit holders.