Gisda Cyf v Barratt - Case Study Example

Gisda Cyf v Barratt [2010] UKSC 4, [2010] 4 All ER 851 Case Study Case Note Nature of the case The Gisda Cyf v Barratt case is one involving the laws and policies regarding termination of employment. This case, whose main judge was Lord Kerr, shows how sensitive these laws are, and how serious the consequences can be when an employer does not respect the time frames given for dismissal of an employee from employment and the consequences an employee can suffer if he or she does not act on time to launch a claim for unfair dismissal from work (McMullen 2009). The facts Gisda Cyf was an employer of Lauren Barratt, and he suspended her employment on 19th of October, 2006. This was because it was said that miss Barratt was seen behaving inappropriately by the organization’s client during a private party. On 28th November 2006, a disciplinary hearing was set, after which the ruling would be made and a letter would be mailed to Barratt two days later (on 30th) to let her know of the ruling. As it is commonly known, dismissal from work and other work related issues are a very important part of any person’s life, and Barratt was no exception to this. Therefore, she decided to wait for the letter. However, being a human being, Ms Barratt was not a separate entity from other issues in her life; her sister has a one-week old new born baby and she needed Barratt’s help. Barratt did what everyone in her shoes would do; she packed her bags on 30th November and travelled to her sister’s place, in London, to give a helping hand (McMullen 2009). Barratt lived with her boyfriend and his son. When the letter came on that day, the son signed for its delivery and kept it for Barratt, since she had not authorized anyone to open the letter on her behalf. Miss Barratt did not manage to travel back home the same day or the next day; she managed to do so on the evening of 3rd December. Being tired from the past week’s events and travelling, she slept that night without asking (or being told) about the letter until the next morning, when she asked and was told that it was in the house. When she opened and read the letter, she found out that the ruing was not on her side; she had been dismissed from her job on the grounds of “gross misconduct.” She tried, unsuccessfully, doing an internal appeal on unfair dismissal, but it was dismissed. On 2nd March, the next year, she at last managed to have an appeal accepted and presented to the Employment Tribunal. The appeal was that of “unfair dismissal and sex discrimination” (McMullen 2009). Case Commentary The case had underlying complications, based on the Employment Rights Act. According to section 97 (1) of the 1996 Act, the “effective date of termination” has two definitions:- (a) … the date on which the notice of termination expires, in the case where the employee is terminated by notice (b) … the date on which the termination of employment starts to take effect, in the case where the employee is terminated without notice (Hardy 2011). According to the case, it was concluded that Miss Barratt was terminated without notice, and therefore the case was now looked upon based on part (b) of the section. However, the controversy was not yet solved, because it was not clear when the termination started to take effect. This date was either to be the date Gisda Cyf decided to terminate her, the date the letter of termination was sent or the day the letter was received by her boyfriend’s son. Also, the date of termination would have taken effect on the date she read the letter or on the date she understood what the letter meant. If this was so, it was not clear when the contents of the letter became clear to her (McMullen 2009). Therefore, the tribunal had to refer to another section, section 111 of the 1996 Act. This section was to determine whether or not the appeal for unfair dismissal was relevant. It stated that: “….an employment tribunal shall not regard as relevant any complaint of unfair dismissal unless it is presented to the tribunal – (a) … within three months from the effective date of termination, or (b) … within an extended period (above the three months) which the tribunal finds logical and fair, and this is only in the case where the tribunal agrees to the fact that it was not logical for the appeal to be made within the period in (a)” (Moffat 2007). The tribunal decided to go by (a), simply because they found no substantial evidence to show that a three month period was unreasonable for Barratt to have presented the appeal for unfair dismissal (Hardy 2011). The debate on the effective date of termination went on and on, and it was said that it was not fair for the time to start running against Barratt until she was aware of the ruling that she was dismissed. This was especially so based on the events that surrounded her receiving of the letter of dismissal from employment. It was argued that she had not gotten the fair and reasonable opportunity to read the letter, especially because it is known that her leaving for London was not deliberate in avoiding the letter. It was also argued that since dismissal from work is an event of such significance in one’s life, the fact that Barratt had already faced the possibility of dismissal was enough for her to first take time to absorb; hence the possible reason why she did not provide the reasonable opportunity for the information to get to her by authorizing the opening of the letter when she was away with her sister (McMullen 2009). Previous cases were reviewed that had similar circumstances of unfair dismissal appeals. One of the cases is the Brown v Southall & Knight case. In this case, the tribunal had reached a conclusion that in the case where termination is done by notice or without notice, the date of termination could not begin until the employee had the reasonable opportunity to read the letter of dismissal. The tribunal ruled that it was not sufficient or reliable to say or assume that the employer had decided to dismiss the employee. Also, it was ruled that it was not reliable or sufficient for the employer to base his argument on the claim that he had posted the letter of dismissal, because many circumstances surround the safe and timely delivery of the letter to the employee. Also, upon delivery, several circumstances surround the reasonable opportunity for the employee to read it (the letter can be delivered only to be misplaced or get damaged before the employee reads it and understands it). However, the exception would be if the employee goes away deliberately to avoid reading the letter and the letter is delivered late, gets misplaced or destroyed (McMullen 2009). Another similar case that was reviewed is the McMaster v Manchester Airport plc. In the case, McMaster was sick, and consequentially, he was on sick leave. It was during this leave that the dismissal was made, and a letter was mailed to him from his employer. Due to surrounding circumstances, he was not able to read the letter until the next day. The letter was delivered to his home on 9th November 1995, and his appeal for unfair dismissal was received on 9th February 1996. If 9th November was the effective date of termination, then he had appealed a day later than when he ought to have done so. However, the effective date was decided to be the 10th of November, because the letter had been mailed when he was not only on sick leave but also out of the country. Therefore, it was concluded that his appeal had be done on time, and was therefore relevant (McMullen 2009). It was argued that the Act was meant to create a sense of balance between the two parties, employer and employee, but this was not to mean that both parties had to be placed on totally equal grounds. This was mainly based on the fact that employees are more vulnerable than employers. According to the argument, the only reasonable opportunity for Barratt to read the letter and know of the dismissal was on 4th December, 1996. However, Lloyd LJ gave a counter-argument and dismissed the argument, saying that Barratt had the option of having the letter read to her on phone or even faxed to her while she was in London, meaning that reading it was not the only way she would have known of the dismissal from work (McMullen 2009). The tribunal gave a ruling, but a set of recommendations and regimes were given. Employers were advised to ensure that their employees receive and know about dismissal notices by going a step further and informing the employee through email or face to face about it. No written extension of the period of reasonable opportunity to read the letter would be given, and this was because of the tribunal’s ruling that all cases had their unique circumstances surrounding them. After a long time of the tribunal debating, the conclusion of the matter was reached at; the appeal by Miss Barratt on unfair dismissal and sex discrimination was dismissed (McMullen 2009). The case of Miss Barratt was a sad one and one that causes and stirs up sympathy. However, there is a need for the employment dismissal laws to create more specific clauses that cover most circumstances, as this will help in lengthening of the hearings and leaving the fate of the hearing to the tribunal’s opinions. Also, it needs to incorporate a rule that makes it compulsory for the employers to take an extra step after posting a letter of dismissal. The extra step could possibly be an email, a call or a face to face meeting with the employee to notify them of the termination. This way, the letter of termination is only to be used as written evidence or referral in case an appeal is made, but it should not be the sole means used to notify the employee of termination (Moffat 2007). References Hardy, S. 2011. Labour Law in Great Britain. London: Kluwer Law International. McMullen, J. 2009. Redundancy: The Law and Practice. Oxford: Oxford University Press. Moffat, J. 2007. Employment Law. Oxford: Oxford University Press. sss Read More