Knowing when an employee’s employment ends may seem like an easy question to answer; however, in some cases the answer is not so clear cut. We report on a recent case where termination was communicated through the employee’s solicitor – was this communication sufficient to end employment?
In the case of Bowskill v Fairhill Medical Practice, Dr Bowskill had been employed for over 40 years by the respondent. In December 2010, she was suspected of serious misconduct and faced disciplinary action. At the time, Dr Bowskill was signed off work with depression but she instructed her solicitor, Ms Kavanagh, to act on her behalf during the disciplinary process.
The chronology becomes important here… Disciplinary hearings were postponed a number of times before the respondent decided to go ahead in Dr Bowskill’s absence on 6 July 2011. At the conclusion of the hearing the employer decided to summarily dismiss her for gross misconduct. On the same day, 6 July 2011, the respondent’s solicitor emailed Ms Kavanagh with the result of the hearing and confirmed that a decision letter would be sent out shortly. On 7 July 2011, Ms Kavanagh informed her client by telephone and in writing of the Respondent’s decision. Ms Kavanagh also wrote a letter back to the respondent’s solicitor, disputing their decision on the grounds of her client’s ill health and claiming that they had been guilty of discrimination. The respondent’s solicitor sent their letter confirming Dr Bowskill’s dismissal on 7 July 2011, which was received and read by the Claimant on 8 July 2011.
Dr Bowskill had 3 months from the date of termination to issue a claim in the Employment Tribunal for unfair dismissal and discrimination. She did this on 7 October 2011. The question for the court was – was she in time?
The Employment Tribunal found that Dr Bowskill’s claim had been issued outside of the three month time limit and was disallowed. The Tribunal found that the effective date of termination was 7 July 2011, the date that Ms Kavanagh told Dr Bowskill the result of the disciplinary hearing. Dr Bowskill should have issued her claim by the 6 October 2011 – she was therefore 1 day late and her claim had been submitted out of time. The Tribunal considered whether it would be just and equitable to extend time; however, it found there was no satisfactory explanation for presenting the claim late as the solicitor should have known better! Dr Bowskill appealed. She argued that a dismissal communicated through a third party (her solicitor) did not count and the effective date of termination only began on the date that she read her employer’s dismissal letter (from 8 July 2011).
The EAT agreed with the Employment Tribunal. It found that there was sufficient communication of the dismissal decision to Dr Bowskill on 7 July 2011 by her solicitor. As a result, it was not necessary to wait for the respondent’s letter of dismissal to arrive. Dr Bowskill knew she had been dismissed on 7 July 2011; therefore, the effective date of termination was 7 July 2011 and time ran from this date. As a result, the claim was out of time. The EAT again considered whether it would be just and equitable to extend the time limit in the interests of fairness. The claim was out of time as a result of Ms Kavanagh’s behaviour and held that the “faults of the solicitor should not be visited on their client’s head”.
A good case for employers – and a salutary lesson for lawyers! However, this case does focus on the courts’ emphasis in seeking to protect the rights of individuals to bring claims and when the time limit for bringing claims should be extended on ‘just and equitable’ grounds. If, for example, an employer sends the letter of dismissal but the employee does not open it for a week (for example, if they are away on holiday) the effective date of termination would be when the employee became aware that they had been dismissed, not the date that the letter was sent. For employers this is particularly important where there is a time limit to be observed (e.g. if termination is just before the employee acquires 2 years’ qualifying service). If this is the case, make sure that communication of the dismissal is in an immediate form, such as by telephone or registered post, to ensure the employee is aware of the decision or consider confirming the decision in a face to face meeting.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.