Employment Law Advocates

The case of Gisda Cyf v Barratt concerns the thorny issue which arises when a dismissal letter is sent to an employee but is not read until several days later. A well-established principle was set down by the Employment Appeal Tribunal in Brown v Southall & Knight, as long ago as 1980, but it came under challenge for the first time in the Court of Appeal. The majority upheld its ratio that, so long as there is no deliberate avoidance of reading a dismissal letter, it will not come into force until it is actually read.

This result differs from the common law position in the case of The Brimnes, well-known to first year law students, in which a contract was brought to an end by a fax sent within office hours, even though it had apparently not been seen. This discrepancy is the basis of a persuasive dissent by Lord Justice Lloyd. However, Lord Justice Mummery, giving the leading judgment for the majority, emphasises the policy issue which arises from the three-month limitation period. An employee who does not find out about being dismissed until some time afterwards will have even less time to decide to bring a claim.

An intriguing point arises from the unreported constructive dismissal case of Potter v RJ Temple, in which a resignation letter faxed to an employer late in the evening was deemed to have taken effect immediately, causing the time for bringing a claim to start to run. The Court of Appeal does not deal with this contradiction entirely satisfactorily but it is clear that policy weighs in a different direction when somebody resigns, because the crucial issue is when the person bringing the claim becomes aware of a right to do so. The knowledge of the employer is, in this context, irrelevant. Lord Justice Lloyd suggests that this inconsistency undermines Brown but, as Lord Justice Mummery notes, Potter is not consistent with The Brimnes either because a termination communicated out of hours is ineffective in contract law.