United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T LINDEN (of Counsel) Messrs Pattinson & Brewer Solicitors 30 Great James Street London WC1N 3HA
For the Respondents	MR J PARKIN (of Counsel) Instructed by: Mr E Tomlinson (Legal Adviser) Manchester Airport Plc 5th Floor Olympic House Manchester M90 1QX


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against a decision of an Industrial Tribunal held at Manchester on 25th October 1996. The appellant Mr A T McMaster had presented an application to an Industrial Tribunal complaining of unfair dismissal by the respondent, Manchester Airport Plc. The issue before the Industrial Tribunal was whether the complaint had been presented within three months of the effective date of termination of the employment.

The relevant dates were that the Originating Application was received on 9th February 1996 at 4.16 p.m.. If, therefore, the effective date of termination was 9th November 1995, then the application was presented one day out of time. If, on the other hand, it was the 10th November, then the application was presented within time.

It is common ground between the parties, that in this case there was a summary dismissal followed by payment in lieu of notice. The letter of dismissal was received at the applicant's home on 9th November, but he did not see it until 10th, because he had been away on a day trip to France and did not return to his home until the 10th.

It is common ground between the parties that in order to be effective, the fact of dismissal needs to be communicated by the employer to the employee, whether it is a summary dismissal or a dismissal on notice, and whether the dismissal was in breach of contract or not.

The Industrial Tribunal dealt with the matter in this way. In paragraph 20 they say this:

"20. The Tribunal gained particular assistance from the speech of Mr Justice Slynn in the case of Brown v Southall and Knight [1980] IRLR 130. The facts of that case are not dissimilar form the facts in this case except that in the Brown case the employer knew when the dismissal letter was sent that the employee was away on holiday or going away on holiday imminently. The difference in this case is that the applicant did not inform his employer, the respondent, that he would be away. The Tribunal concluded that the effective date of termination, as defined in section 97 of the Employment Rights Act 1996, was 9 November 1995 when the letter was received at the applicant's home. He was off sick and the respondent could reasonably expect that an employee who was off sick would be at home to receive post. The fact that the applicant was away on a day trip to France and did not return until the following day does not, in the view of the Tribunal, delay the effective date of termination until the day when he read the letter."

In support of the Industrial Tribunal's decision, Mr Parkin submitted to us as follows. Firstly, that the effect of paragraph 20 was that the tribunal were making a finding that the applicant had had a reasonable opportunity to read the letter of dismissal. Secondly, the fact that he did not read that letter was, therefore, his fault. Because through his own fault he did not read the letter, he is to be deemed to have knowledge of its contents by virtue of the doctrine of constructive knowledge.

In relation to the appellant, Mr Linden has submitted that the Industrial Tribunal misunderstood the facts in the decision on which they relied; and secondly, that in any event, the concept of constructive knowledge as being advanced, had no place in the law when properly understood.

The decision to which reference was made by both parties, namely the Brown case contains a lengthy passage at page 628 in the [1980] ICR report between letters A to G:

"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."

It is that passage which forms the foundation of Mr Parkin's argument.

It seems to us that as a matter of principle, unless compelled to take a different view, the doctrine of constructive or presumed knowledge has no place in the private rights of parties to contracts of employment, and questions as to whether a dismissal has been communicated or not, save, in an evidential sense only. That is, in the sense that, an Industrial Tribunal when examining whether a dismissal has been communicated to an employee, will be likely to assume that letters usually arrive in accordance with the normal course of post; and that people are to be taken, normally, as opening their letters promptly after they have arrived at their place. But it is to be emphasised that we are dealing with the private rights of parties to a private contract. We are not dealing with rules which govern the service of formal documents, where there may well be room for what is effectively a form of presumed or constructive knowledge. It seems to us that there is no juridical basis for seeking to import technical 'service' rules into the private rights of parties to a contract of service or for personal services. The question therefore arises as to whether the effect of the Employment Appeal Tribunal's decision in the Brown case is to open the door to the importation of the doctrine of constructive knowledge of the sort that Mr Parkin is contending for. It is to be noted that the two examples which were given by the Employment Appeal Tribunal in 1980 are of occasion in which an employee receives a letter and either deliberately does not open it, or goes away to avoid reading it. In other words, either shutting his eyes to what he knew was coming his way, or, alternatively, evading the consequences of what he knew the employers were going to do. This is not a case where there has been shutting of eyes or any evasion.

It seems to us, accordingly, that there is no justification for seeking to argue that because Mr McMaster was not at home when his employers thought that he should have been, he is to be assumed to have knowledge of that which he did not have knowledge of, and which, in the circumstances, he did not even have a reasonable opportunity for knowing about. He was not at home when the letter arrived and he read it at the first available moment when he did arrive after the letter had been received.

Furthermore, it seems to us, that Mr Linden's submission on the Brown case is correct. When properly understood, it is not a case where the employer knew when the dismissal letter was sent, that the employee was going to be away on holiday. That is simply not what the facts were in that case. As it seems to us, it is a case where the employers, in fact, thought that the employee would be likely to be at home as they thought he would be taking his holiday after the letter should have been received in the normal course of post. In any event, it seems to us the Industrial Tribunal have misdirected itself because they have concentrated, as one can tell from paragraph 20, on the state of mind of the employers, namely could they reasonably expect that an employee who was off sick would be at home to receive the post. It seems to us that the first proposition raised by Mr Parkin is unsustainable. There is no finding by the Industrial Tribunal that this applicant had a reasonable opportunity to read the letter of dismissal and that he was in some way at fault for not doing so. Whilst it might be the case that somebody who was off sick would be likely to be at home, we can think of several examples where that would not be in practice the result. A person might go to a relative to be looked after, might require to go to hospital to be seen, or, in this case suffering from stress, might take a day trip for the betterment of his condition. It seems to us that to conclude that just because you are off sick you will be at home and available to read letters of dismissal, is a jump in logic which cannot be accepted.

It seems to us that the moral of this particular case is that if employers wish to know at what point the contract of employment has been terminated, they can best do so by communicating directly with the employee concerned, so that they will be satisfied that the communication has indeed been received. The employers in this case are large enough to have been able to have effected that result.

The consequence is that the application for unfair dismissal was, in our judgment, presented within time, since the date of termination could not have been earlier than the date on which knowledge was received by the applicant that he was being dismissed, which on the facts, was 10th November 1995. Accordingly, we will allow the appeal and order that the matter be heard and determined on the substance of his case for unfair dismissal as soon as the tribunal may reasonably and practicably arrange such a hearing.