The employee had gone on holiday at the time when the letter of dismissal arrived at his home and he did not actually see it until he had returned from his holiday.
Held: The ‘effective date of termination’ is a statutory concept which focuses on the actual dismissal. It is settled that this takes place when the decision to dismiss is communicated to the employee. Where dismissal is communicated to an employee in a letter, the contract of employment does not terminate until the employee has actually read the letter or has had a reasonable opportunity of reading it. It was not enough to establish that the employer had decided to dismiss a person, or had posted a letter saying so. If, however, the employee deliberately did not open the letter, or if he went away to avoid reading it, he might well be debarred from saying that notice of his dismissal had not been given to him.
Slynn J said: ‘It seems to us that it is not enough to establish that the employer has decided to dismiss a man or, indeed, has posted a letter saying so. That does not itself, in our view, terminate the contract. Nor, in our view, is it right, in looking at the matters as the industrial tribunal did in considering the reasonable steps taken by the employer, to look solely at what the employer does and to ask whether that constitutes the taking of reasonable steps. In our judgment, the employer who sends a letter terminating a man’s employment summarily must show that the employee has actually read the letter or, at any rate, had a reasonable opportunity of reading it. If the addressee of the letter, the employee, deliberately does not open it or goes away to avoid reading it he might well be debarred from saying that notice of his dismissal had not been given to him. That, however, did not happen in this case. The industrial tribunal found that he had not received it by the first post; had he gone to work on Friday there would have been no obligation on him to go back home in the evening on the Friday or on the Saturday. It is clear that he did not come back until July 30; he did not read or, in our view, have a reasonable opportunity of reading it until that day; and it is not established either that he deliberately avoided reading it or that he had a reasonable opportunity of doing so. It seems to us in this case that even though he may have been in breach of some obligation to his employers in not being at work on the Friday, it is quite clear that he was not at home on that day and that he did not have the necessary notice of his dismissal. The first time he knew of this dismissal was on the 30th.
It is contended before us that the effective date of termination is not dependent upon receipt, although dismissal itself is dependent upon communication at some stage. Mr Malins, to whom we are indebted for a careful research and a most able argument, has submitted that the date on which the termination takes effect can be the date stated in the letter even though the letter is not received until subsequently. In other words, if the letter bearing the date July 20 says ‘You are dismissed today,’ dismissal takes effect on July 20 even though it is not received and not known about until July 30. We do not accept that submission. In our judgment, the termination does not take effect until the employee has either been told of, or has had a reasonable opportunity of reading, the notice of dismissal. The date on which the termination takes effect is the date when either he does read or the date when he reasonably had the opportunity of knowing about it. We do not consider that the fact that he knows on the 30th makes his dismissal retroactive.’
Slynn J
[1980] ICR 617, [1980] IRLR 130
England and Wales
Cited by:
Followed – McMaster v Manchester Airport Plc EAT 27-Oct-1997
The claimant was summarily dismissed by letter while on sickness leave. The letter arrived 9 November 1995, but he was on a day trip to France. He read the letter on return the day after. His unfair dismissal complaint was received by the industrial . .
Cited – Gisda Cyf v Barratt CA 2-Jul-2009
The employer wrote to the employee on 29 November 2006 informing her of her dismissal, the letter arrived on the 30th, and she read it on the 4th of December. The employer appealed against a finding that the effective date of dismissal was the date . .
Cited – Gisda Cyf v Barratt SC 13-Oct-2010
The parties disputed the effective date of termination of the claimant’s employment. Was it the date on which the letter notifying her was sent, or was it on the day she received it. She had been dimissed without notice, and the date was the date on . .
Followed – Hindle Gears Ltd v McGinty EAT 1985
During a strike, employers were exempt from unfair dismissal claims only if they dismissed an entire striking workforce. They were not entitled to dismiss only those strikers who were ‘unwanted elements’. So if there were striking employees who were . .
Cited – Newcastle Upon Tyne Hospitals NHS Foundation Trust v Haywood SC 25-Apr-2018
Notice of dismissal begins when received by worker
The court was asked: ‘If an employee is dismissed on written notice posted to his home address, when does the notice period begin to run? Is it when the letter would have been delivered in the ordinary course of post? Or when it was in fact . .
These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.372326 br>