United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P GREATOREX (of Counsel) Instructed by: Messrs Richard C Hall & Partners Solicitors Red Hill House Saltney Chester CH4 8BU
For the Respondent	MR R MULLAN (of Counsel) Instructed by: Messrs Hanratty & Co Solicitors The Eagles Short Bridge Street Newton Powys SY16 2LW


 


SUMMARY

JURISDICTIONAL POINTS: Claim in time and effective date of termination

Where a decision to dismiss is communicated by a letter sent to the employee at home, and the employee has neither gone away deliberately to avoid receiving the letter nor avoided opening and reading it, the effective date of termination is when the letter is read by the employee, not when it arrives in the post.

MR JUSTICE BEAN

Introduction

1. On 2 March 2007, Miss Barratt brought claims in the Employment Tribunal alleging unfair dismissal and sex discrimination. The employers had the case listed for a pre-hearing review arguing that both the claims were out of time. The Employment Judge, Mr J C Hoult, sitting alone, held that both claims were in time; BUT that in respect of the unfair dismissal claim, had he not found it to be in time, he would not have found in the Claimant's favour on the issue of reasonable practicability. In respect of the sex discrimination claim he held that if it had not been made in time he would have exercised his discretion under the provisions of the Sex Discrimination Act allowing an extension of time where it is just and equitable to do so.
2. The appeal by the employers before me is concerned with the single question of whether the Employment Judge was right to find that the unfair dismissal claim had been brought in time.

The Respondent's Case

3. The Claimant attended a disciplinary hearing on Tuesday, 28 November 2006. As the Employment Judge found, she was anxious to know the result and was told that a letter would be sent to her the following day and that she should expect to receive it the day after, that is Thursday, 30 November 2006.
4. A letter notifying the Claimant that she had been summarily dismissed was sent by recorded delivery to her home address on 29 November. It arrived the next day. The Claimant was not there. The letter was signed for by her boyfriend's son. Miss Barratt, however, had already left home at 8.00am on the Thursday morning of 30 November to travel to London.
5. The visit to London was not undertaken in order to avoid receipt of what might well be unwelcome news in a letter from her employers, but to visit her sister in London. Her sister had given birth to a child on 23 November and since the sister had lost her previous baby, the Claimant was naturally anxious to be with her soon after the birth of this baby.
6. During the period from Thursday to Sunday the Claimant did not make any enquiries about whether a letter had arrived from her employers. She returned home to Wales late on the evening of Sunday, 3 December. The following day, the Monday, she asked her boyfriend and his son whether any post had arrived. The son recalled that he had signed for a recorded delivery item. He found it among his school homework and handed it to the Claimant who read it.
7. The claim for unfair dismissal, as I said, was presented on 2 March 2007. It followed therefore, that if the effective date of termination was on or before Saturday, 2 December the claim was out of time. If the effective date of termination was Sunday 3 December or Monday 4 December, the claim was in time.
8. The Claimant was, in the words of the Chairman, put to stringent cross-examination at the pre-hearing review. When cross-examined she said she thought she knew what the outcome of the disciplinary hearing would be. She accepted that she could have made enquiries about the letter while in London but did not, and that this would have been an opportunity for her to discover the contents of the letter. She acknowledged that if she had made enquiries about the letter it could have been read to her on the telephone. But her evidence was that it was up to her to read the letter, that she did not make enquiries about it, and that while she was away she was more concerned about her sister than about the letter, particularly because the sister had lost a baby the year before.
9. The Chairman set out his findings on the critical issue of the effective date of termination in paragraph 8 of the decision, which extends to two full pages. The material part of this paragraph reads as follows:

"Given that I accepted that the claimant did not know of her dismissal until the 4^th December 2006 that on the face of it would put both claims within the stipulated time limit. However, I had to consider the submissions made in respect of Brown v Southall & Knight. The claimant had been put to stringent cross examination by Mr Hall. She had admitted that both she and her partner were anxious to receive the decision, that was clear from the notes of the disciplinary hearing. Mr Hall suggested that it beggared belief that the claimant would not have been ringing home regularly to find out whether or not the letter had been received and in his view she had a reasonable opportunity to discover the contents that is that she had been dismissed. Whilst he did not specify the dates it was taken to mean that she had such opportunity to discover the contents that is that she had been dismissed. Whilst he did not specify the dates it was taken to mean that she had such opportunity on the 30^th November and the 1^st, 2^nd and 3^rd December. I accepted the claimant had not made enquiries nor indeed had her boyfriend communicated with her about the letter received at the home. I took account of the way the claimant gave her evidence and whether the claimant and her witnesses were telling the truth. It could have been and was suggested that the claimant was creating this account knowing full well that if it was believed she could proceed with both her claims. I did not believe this was the case and having taken account of what they said and they way the evidence was given I accepted the evidence I had been provided with. I accepted what the claimant's boyfriend's son said about leaving the letter with his homework. I accepted what the claimant's sister said about the fact there was no discussion about the dismissal during the time they spent together. I felt that had the claimant actually found out the decision whilst away then she would have discussed it with her sister. I accepted there was no discussion about the dismissal until Monday the 4^th December 2006. The claimant clearly had the opportunity to make enquiries about any letter having been received and had she have discovered that one had she could have learnt the contents. Had she have made an enquiry by the telephone this would not have given her a reasonable opportunity to read it but of course she could have discovered the contents. I was referred to the head note of the case of Brown v Southall & Knight where it indicates what is well known that a letter of dismissal does not effectively terminate the Contract of Employment until the employee has actually read the letter or had a reasonable opportunity of reading it. It also refers to the fact that of [sic] an employee deliberately does not open a letter or goes away to avoid reading it he might well be debarred from saying the notice of dismissal had not been given to him. I did not accept that the claimant had gone away deliberately to avoid reading the letter. I was satisfied that given the circumstances of her sister that the reason for the visit to London was genuine it was to help her sister with housekeeping and looking after her child. I took account of the Minutes where the claimant said had she needed to know the decision so that she could visit London. It was clear that she left for London without knowing the decision. In my view the claimant did not have a reasonable opportunity of reading the letter of dismissal until the 4^th December 2006. Whilst she may have been able to ask someone to read the letter over to her she did not and this did not seem to be an unreasonable position to adopt given the reason for her absence form the home. We were talking about a relatively short period the 30^th November until the 4^th December. It could have been said that the claimant should have opened the letter on the 3^rd December 2006 and that she had a reasonable opportunity to read it on that date. Given that the claimant had had a long journey from London and had not arrived home until between 10.00 and 11.00 pm I did not consider that it would be reasonable to expect her to read it that evening. In any event even if she had had a reasonable opportunity to read the letter on that date the claims would still have been in time having been presented on the 2nd March 2007. Whilst the claimant certainly had the opportunity of learning the contents because she could have made enquiries. She certainly did not have a reasonable opportunity of reading it until the 4th December 2006 which was the effective date of termination of her employment. The respondents did not establish that either the claimant deliberately avoided reading the letter by going away or that she had a reasonable opportunity of doing so during the period of absence. The claims therefore had to be presented by the 2nd March 2007 and they were."

10. The Chairman in this passage referred to the decision of the EAT Slynn J presiding in Brown v Southall and Knight [1980] ICR 617:

"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."

11. In McMaster v Manchester Airport Plc [1998] IRLR 112 the EAT, Morrison J presiding, said at paragraph 9:

"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 [counsel for the employers] 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."

The Claimant's Case

12. In his forceful submissions for the Appellant, Mr Paul Greatorex firstly argued that irrespective of the correctness or otherwise of the two reported cases to which I have referred, the Chairman's findings of facts should have led him to the conclusion that the Claimant had indeed had a reasonable opportunity to discover the contents of the letter by Saturday, 2 December 2006. "Reasonable opportunity" he argues, must be viewed objectively. It is not the same question as whether the Claimant was acting in a reasonable way. In using that phrase he refers to the decision of the EAT given by Slynn J, as he then was, in the Brown case. But judgments, even of future law lords, must not be read as statutes. The usual rule, as McMaster makes clear, is that a letter of dismissal is only effective when the Claimant reads it. Slynn J gave two examples of what may well be exceptions when the recipient receives a sealed envelope containing the letter but deliberately does not open it, as some people treat letters from the Inland Revenue. The other example is where an individual deliberately goes away in order to avoid receiving a letter. In the present case, the Chairman held that neither of these applies.
13. I do not accept that Slynn J was suggesting a wider rule; namely that an individual must be treated as having received notice of termination of his contract by a letter addressed to him at home if he had any reasonable opportunity of discovering the contents of the letter by telephoning from a distance and asking someone else to open the letter and read to him. Even if Slynn J was suggesting such a principle "reasonable opportunity" must in my view mean "an opportunity which the Claimant could reasonably be expected to take". The Employment Judge found that it was not unreasonable for Miss Barratt to be absent from home for a four-day period including a weekend without arranging for her letters to be opened and read to her on the telephone. I do not think that finding can be interfered with and for what it is worth I agree with it myself. I do not consider, therefore, that the employers have a sustainable appeal without a root and branch attack on the established case law, which is what Mr Greatorex proceeded to carry out in his second submission.
14. Mr Greatorex argues that whether a contract of employment remains in force in the circumstances of this case; namely where a letter of termination is sent through the post, should not depend on a factual investigation of what the Claimant actually did or had a reasonable opportunity of doing. A contract, he submits, can be terminated by one party without the other party actually being aware of the termination and is so terminated at the time when the communication, be it letter, fax, email or in past times telex, would "in the normal course of things" have to come to the other party's attention.
15. The case on which he relies for that proposition is a decision of the Court of Appeal on appeal from the Admiralty Judge, Mr Justice Brandon, as he then was, in The Brimnes [1975] QB 929. The owners of a ship sent a notice by telex to the charterers at 5.45 pm on 2 April 1970 purporting to withdraw the vessel on the ground of late payment of the hire charge. The charterers' normal business hours ended at 6.00pm. In fact the telex, though it arrived in the charterers' office at 5.45pm on 2 April was not seen until the following morning. Brandon J found that the notice must be regarded as having been received by the charterers before 6.00 pm on 2 April and the Court of Appeal upheld that decision. The case has echoes of a vanished age, both in its reference to telexes and in the fact that the hearing in the Court of Appeal took 12 days. Nevertheless, I will assume that it remains good law. At page 945, Edmond Davies LJ said:

"Brandon J. held here that the notice of withdrawal was sent during ordinary business hours, and that he was driven to the conclusion either that the charterers' staff had left the office on April 2 'well before the end of ordinary business hours' or that, if they were indeed there, they 'neglected to pay attention to the Telex machine in the way which they claimed it was their ordinary practice to do'. He therefore concluded that the withdrawal Telex must be regarded as having been 'received'… at 17.45 hours B.S.T. on April 2 and that the withdrawal was effected at that time. I propose to say no more than that I respectfully agree with that conclusion …"

At page 966 Megaw LJ said:

"I think that the principle which is relevant is this: if a notice arrives at the address of the person to be notified, at such a time and by such a means of communication that it would in the normal course of business come to the attention of that person on its arrival, that person cannot rely on some failure of himself or his servants to act in a normal businesslike manner in respect of taking cognisance of the communication so as to postpone the effective time of the notice until some later time when it in fact came to his attention."

At page 969 Cairns LJ said:

"I next consider the time of notice of withdrawal. In my opinion the general rule is that notice must reach the mind of the charterer or of some responsible person on his behalf. There must clearly be exceptions to this rule: for example, if the charterer or his agent deliberately keeps out of the way, or refrains from opening a letter with a view to avoiding the receipt of notice. How much further than this do exceptions go?"

16. It appears from what follows, that he disagreed with his brethren about what might be deemed receipt, but he was able to agree with them on the facts. I need not go into that. It is interesting to note the exceptions which Cairns LJ had in mind, of the prospective recipient deliberately keeping out of the way or refraining from opening a letter with a view to avoiding the receipt of notice, but I assume that the law is as summarised by Megaw LJ.
17. It is one thing to say that the owners or charterers of a ship, or similar large commercial concerns, must be taken to receive and read documents sent to them during normal business hours. It is quite another thing to say that the same principle of constructive knowledge should apply to individuals to whom a letter is sent at their home address. What of the person who lives alone and goes on holiday? What of the commercial traveller? What of the student who lives at university during term time and at the family home in the holidays? What of the individual fortunate enough to have a second home to which he or she goes at weekends? There is no principle equivalent to that enunciated in The Brimnes that an individual is expected to be at home to receive and open the post when it arrives or in the evening when he or she gets home, or that some arrangement must be made for someone else to open what may well be confidential correspondence in the recipient's absence.
18. I, therefore, agree with all that Morrison J said in McMaster v Manchester Airport plc. It is in any event, as Mr Greatorex realistically accepted, the usual practice of the EAT to follow previous decisions of the EAT. I do so readily in the case of the McMaster decision, both because I regard it as laying down a clear and workable principle and because I agree with it.
19. Mr Greatorex argued that the rule for which he contends would have the virtue of certainty. As I have indicated by the rhetorical questions I posed in the last paragraph of this judgment, I do not consider that his proposed rule as applicable to individuals at home would achieve any certainty. On the contrary; I think it would create yet more case law on the subject of the effective date of termination, a subject which has already made a considerable contribution to the volume of reported cases in employment law.
20. If employers wish to achieve some measure of certainty, their means of doing so is surely to include in contracts of employment of their staff a provision which states that the contract may be terminated by the employer sending a letter of dismissal by first class post to the employee's home address as specified in the contract and that such a letter shall be deemed to have been received the next working day. I would not presume to give advice to the profession or the public on the wording of such a provision but it does seem to me that is how a measure of certainty on this subject can be achieved. It would not be achieved by attempting to adapt the decision in The Brimnes to individual employment law.

Conclusion

21. For these reasons, this appeal must be dismissed.

Application for Permission to Appeal

22. I am not prepared to grant leave to appeal myself. I do not think that the appeal has a reasonable prospect of success. While I accept that the proposition that the issue identified by Mr Greatorex is an important one, I think it must be for a Lord Justice in the Court of Appeal to say whether that justifies the Court of Appeal hearing the case.
23. I also bear in mind that it is now more than a year since the first day of hearing of the pre-hearing review, and that Miss Barratt's claim has already been held up for a considerable time. It is desirable that it should proceed to a hearing on the merits of the two claims together; the unfair dismissal and sex discrimination claim, rather than potentially both hearings being held up by the matter proceeding to the Court of Appeal.
24. Certainly whatever course the employers take, and they are of course free to make an application by the Court of Appeal, I do not think it desirable unless the Court of Appeal orders a stay, for there to be any further delay in arranging for a hearing on the merits in the Tribunal since there will have to be one in any event, whatever the outcome of the appeal.