Emailed dismissal letters and effective dates of termination

When is 'Effective Date of Termination' when a summary dismissal letter is emailed? Susan Chan reports on a recent case involving a London borough.

Acting for the Respondent council, I successfully applied to strike out the entirety of Mr Carabott’s claims of unfair dismissal, whistleblowing and trade union detriment in Carabott v London Borough of Newham (East London Employment Tribunal). The dismissal was the last of the acts complained of, with the stricter test of ‘reasonable practicability’ governing all the claims. It was originally thought that the dismissal letter had only been posted, whereas it transpired that as the letter had also been emailed on the date of decision, the Claimant was actually between 1- 3 days late in approaching ACAS for conciliation. Hence, all of his claims were out of time.    

The Claimant, Mr Carabott, was a refuse vehicle driver for London Borough of Newham who was dismissed summarily for gross misconduct by a letter dated Friday 10 July 2020. This letter was posted to him that day. Allowing 2 days for ordinary post would make the Effective Date of Termination (EDT) the 12th July, but as the 12th was a Sunday, it would be regarded as not arriving until Monday 13th July. C approached ACAS for conciliation on 12th October (so within 3 months minus 1 day); was issued with an ACAS certificate on 12 November and lodged his claim on 10 December, within a month of the ACAS certificate being issued. So far, so good for C being in time. The Respondent had accepted previously that the dismissal claims at least, were in time.

However, on the first day of the final merits hearing before any evidence had started being heard, the dismissing manager checked his email box to see whether he might have emailed the dismissal letter to C. He had previously searched his email ‘sent’ box using C’s name, but recalled that C had an unusual personal email address which did not include the claimant’s name. C’s union representative and the employer, with C’s consent, had copied C into multiple email communications on the disciplinary matter, in the weeks before the dismissal.

On the dismissing manager checking against C’s distinctive email address, he realised that although he had forgotten this, he had also emailed the dismissal letter to Mr Carabott at 12.18pm on 10th July. This changed everything, as the EDT in a summary dismissal is when the decision is communicated to the employee. If the EDT was any earlier than 13 July 2020, all of C’s claims would be out of time. The Supreme Court case of Gisda-Cyf v Barratt [2010] ICR 1475 determined that the EDT is when the employee actually becomes aware of the summary dismissal, or if communicated by a letter, when they have had a reasonable opportunity to see the letter’s contents.

On the tribunal being alerted to this email communication, the tribunal decided to consider time jurisdiction as a preliminary issue. C was ordered to prepare a statement on time jurisdiction and was questioned on this issue. C claimed that because he suffered with extreme dyslexia, he could not read letters, and was dependent on his wife to read it out to him, which he tended to do with her at weekends as she worked long hours from Monday-Friday in a school. He could not specifically remember when he and his wife had read the dismissal email. However the tribunal noted that his union representative had referred in subsequent emails to C having received the dismissal outcome on the 10th July.  

The tribunal found that on the facts, C did become aware of the dismissal email on Friday 10th July, as C would have anxiously been waiting for the outcome letter, having been promised by the manager that he would get the outcome around that time. A previous practice had been established of the employer sending important correspondence on the disciplinary proceedings to C’s personal email address without objection from C. The tribunal found that whilst C may not have sat down with his wife on the Friday after her long day working at school, even if he was aware that the outcome letter had arrived in his ‘inbox', he would have done so on the Saturday 11th July, or at the latest on Sunday 12th July, as they would have had time then to go through the contents of the anxiously emailed emailed outcome letter.

As C had not approached ACAS for mandatory conciliation until 12 October 2020, the claims’ primary time limit had expired and C did not get the benefit of any extension of time under section 207B Employment Rights Act 1996. The tribunal found that it had been reasonably practicable for C to approach ACAS for conciliation and present his claims in time, so declined to grant an extension of time and struck out all of C’s claims.

The case demonstrates the importance of focussing on when a summary dismissal is actually communicated to the employee, or alternatively, when they have had a reasonable opportunity to read the dismissal letter. Such communication may be by email, as long as the employee could reasonably be expected to be aware that such a decision might arrive by email. Here, the transmission by email (in contrast with the posted letter) made all the difference to whether the tribunal had jurisdiction to hear the claims.

Susan Chan is a barrister at 42BR. She acted for the London Borough of Newham.