Does the three-month period for making an unfair dismissal claim start on the date of the employer’s decision to dismiss or from when the employee becomes aware of the decision?Wednesday, October 20th, 2010
In a decision given on 13 October 2010 in the case Gisda Cyf v Barratt, the UK Supreme Court dismissed an appeal by the employer that a claim of unfair dismissal had been made out of time, ruling that the three-month period for making such a claim must run from the time that the employee becomes aware of the decision. The decision agreed with those made earlier in this case by the original employment tribunal, the Employment Appeal Tribunal, and the Court of Appeal.
In November 2006, Ms. Barratt was told, after attending a disciplinary hearing, that the decision about her employment would be sent to her by letter. Before the letter arrived, she went away to visit her sister who had just had a baby. The letter, telling her that she had been summarily dismissed, arrived while she was away and she only read it after her return. During most of the three months following Ms. Barratt’s dismissal, she had pursued an internal appeal and had sought advice on lodging an unfair dismissal complaint. Her subsequent application claim for unfair dismissal and sex discrimination was presented more than three months after the dismissal letter was sent, but less than three months after she read it.
The Supreme Court disagreed with the employer’s argument that termination of employment contracts should be interpreted under conventional contract law. Employment law is intended to protect employees, not to place employers and employees on an equal footing. In order to know when the three-month period expires, employees “must be informed of the event that triggers the start of that period, namely, their dismissal or, at least, [they] must have the chance to find out that that short period has begun.” And, as advice to employers, the Court stated: “Of course, an employer who wishes to be certain that his employee is aware of the dismissal can resort to the prosaic expedient of informing the employee in a face-to-face interview that he or she has been dismissed.”
Ms. Barratt’s claims of unfair dismissal and sex discrimination may now proceed to be heard by an employment tribunal – nearly four years after her dismissal!