If an employee is dismissed but never receives the communication, are they actually dismissed? This briefing by employment solicitor Eleanor Gow, at rradar, looks at the issues.

A recent Employment Tribunal hearing looked at the case of an arcade worker who had been absent from the workplace with mental health problems and returned to work four months later, after the first 2020 lockdown, to find that her employer had replaced her – without her knowledge. The case was that of Una Sault v. Empire Amusements & Cheeky Monkey's Soft Play Centre.

What happened?
Ms Sault had been off work for quite a while with mental health problems, during which time she had not been in touch with her employers. Having heard nothing from her, they sent her a letter on 6 March 2020, which read:

“I hope this letter finds you well and that you are feeling a lot better in yourself. I know that you have been through some trying times of late and everybody here at Empire wished you well. …I am writing to enquire whether to not it in your intention to return to work…sadly unless we hear from you in the next seven days, we will have no option other than to terminate your employment.”

The letter wasn’t sent by post; it was hand-delivered by the Arcade Manager of Empire Amusements. He did not text Ms Sault to check that the letter had been received, nor did he text her to see whether she was home, even though he knew that she had previously been unwell. Ms Sault did not respond to this letter.

The second letter, similarly hand-delivered, and dated 14 March, was the one that informed about the termination of employment. No mention was made of a period of notice; it said that:

“Unfortunately, as you have not responded to the letter we sent on 06/03/20 and we have not heard from you for some time, we have taken the unfortunate decision to terminate your employment.”

Ms Sault said that she never received either of these letters.

The Arcade Manager said that when he hand delivered the letters, he did not knock on the door, nor did he speak to Ms Sault. He just put the letters through the post box. He didn’t take any photographs or video himself making the delivery and nobody was with him to witness this. Ms Sault asked an acquaintance, Mr Norman, to deliver a sick note to Empire Amusements, which he duly did. During his visit, he had a discussion with the Arcade Manager. The discussion covered Ms Sault’s health but there was no reference to her receiving a letter about the termination of her employment. The Tribunal said that it was satisfied, on the balance of probabilities, that it happened on either 16, 17 or 18 March. After talking to Mr Norman, the Arcade Manager spoke to Empire Amusements’ accountant, who advised that he should send a third letter to Ms Sault.

This letter was dated 23 March and said:

“I have spoken to the accountant after receiving your sick note and unfortunately you do not qualify to receive it from your employer. You can however claim it from the government; I have enclosed the necessary form for you to do so.”

Ms Sault said that she had received this letter, but it made no mention of the letters of 6 and 14 March, nor did it mention her dismissal.

The Tribunal said that there was:

“…no indication in this letter that she was no longer an employee of Empire Amusements [the Respondent] and indeed the language of the letter and the act of accepting the fit note, would appear consistent with an ongoing employment relationship.”

By the time Ms Sault came out of hospital, the UK had entered the first COVID-19 lockdown. Empire Amusements had closed the arcade and furloughed the staff. Ms Sault sent a text message saying that she would come in when the arcade opened up again.

At the start of July, as the lockdown restrictions were eased and companies began to open up again, Ms Sault went into the arcade to speak to Ms Greason, the Café Manager, about work. At this point, she was informed that she had been replaced. It was only once she had this conversation that she became aware that her employment had been terminated. She maintained that her Effective Date of Termination (EDT) was 4 July.

Empire Amusements, on the other hand, said that the EDT was 15 March 2020, when – they claimed – the letter of dismissal was hand-delivered to her home address.

What does the law say?
Typically, in civil proceedings, a document that has been sent by post will be taken to have been received on the day on which it would have been delivered in the ordinary course of postal services, unless it can be proved otherwise.

Under Section 7 of the Interpretation Act 1978, service is deemed to be effected: ‘by properly addressing, pre-paying and posting [the] letter’.

When the ‘properly addressing, pre-paying and posting’ of a document is proved and it is not returned through the post undelivered to the addressee, there will be an assumption that it has been duly delivered. Where documents have been correctly posted, the party alleging non-receipt must prove that they have not been received.

However, the Employment Tribunal confirmed that as this case did not relate to a letter delivered using the postal service, but instead to a letter which was hand-delivered, the law of deemed service was not relevant. Instead, if the employee is informed that he or she has been summarily dismissed by letter that is hand-delivered, then the EDT will be the date on which the letter is received and read.

It was a question of fact for the Employment Tribunal to decide whether the letters had been hand-delivered as Empire Amusements said or whether the letters had not been received as was Ms Sault’s case and if not, whether they had been deliberately avoided by her.

In this case, the Tribunal found that Empire Amusements’ behaviour (in particular, accepting Ms Sault’s sick note) had been inconsistent with an employer who has terminated an employee’s employment summarily and Ms Sault’s behaviour was also not consistent with an employee who had just been dismissed. Therefore, the Tribunal found that on the balance of probabilities the letters were not delivered as asserted by Empire Amusements and Ms Sault’s employment had not been terminated until the later date of 4 July 2020 when she was informed verbally of her termination.

In coming to this decision, the Tribunal applied the EAT decision in *Brown v. Southall and Knight (1980), which stated that a summary dismissal communicated to the employee for the first time in a letter addressed to his or her home will not take effect until the letter reaches the employee or until he or she has had a reasonable opportunity to read it. This decision was upheld by the Court of Appeal and Supreme Court in the case of Gisda Cyf v. Barrett in 2010. The Court noted as an aside that an employer who wants to be certain that an employee is aware of a dismissal always has the option of dismissing him or her face to face.

What should employers do?
Where Empire Amusements went wrong was in hand-delivering the first two letters and getting no confirmation of their receipt or evidence to prove Ms Sault had received them. As can be seen from the Tribunal’s findings, it was decided on the balance of probabilities that she had not received or read them and so she was technically not dismissed until 4 July.

The point about communicating with employees regarding the date of termination is covered here. The recommended actions still hold true, and employers should ensure that they take note:

• In the absence of a relevant provision in the employment contract, employers should communicate notice in person with written notice of termination given by hand.
• When the contracts of employment are reviewed, make sure that they have a section on how notice will be given and when it is considered received.
• If notice must be given, ensure that it is done according to any terms in the contract of employment.
• If by some oversight, the contract does not have any terms relating to the giving of notice, the notice should be given to the employee in person.
• If the notice date is critical to some other matter, the notice should not be entrusted to the postal system, but a courier or other personal service should be used instead, which can confirm receipt of the notice.
• During the disciplinary process/redundancy consultation period/sick leave, make sure that any periods of leave or times when the employee is not going to be available are discussed and noted.
• Don’t just email notice and assume that it has been received at the other end; use a delivery and read/receipt notification or ask the employee to personally acknowledge receipt of the notice.
• If the notice is not critical to another matter, then the postal system can be used, but the notice should be sent by registered mail.