1st June, 2020
Why clear communication is essential when dismissing an employee
The Court of Appeal recently held that ambiguity in a dismissal letter was a factor in permitting a dyslexic Claimant to extend the limitation for bringing a claim, in the case of Lowri Beck v Brophy.
The Claimant, Mr Brophy, was employed as a meter operative, for a meter reading company. He is severely dyslexic, and described how in matters of an official nature, he relies very heavily on his brother.
In May 2017, the employer commenced a disciplinary process against Mr Brophy, in respect of allegations he had left a meter in a dangerous condition. The disciplinary hearing took place on 21 June 2017. The disciplinary officer declined to make an immediate decision in the hearing , but told Mr Brophy he would let him know the outcome in writing.
On 29 June 2017, the disciplinary officer called Mr Brophy on the telephone and told him, as the Employment Tribunal found as a fact, that he was being dismissed for gross misconduct with immediate effect; that he would be receiving a letter; and that he could appeal within five days of receiving the letter.
The letter was received on 6 July, although dated 4 July 2017. It stated:
““Further to the disciplinary hearing held on Wednesday, 21 June 2017 and our telephone conversation on Thursday, 29 June 2017, I am writing to inform you of my decision.”
And then later in the letter:
“I have no option but to dismiss you for gross misconduct. This dismissal will be with immediate effect from 29 June 2017.”
Mr Brophy communicated to his brother that he had been dismissed in early July, based on the letter of 4 July. The brother took some legal advice, and issued claims on behalf of the Claimant for unfair dismissal and disability discrimination in the Employment Tribunal on 5 December 2017, after a period of Early Conciliation with Acas. The primary time limit for these claims are three months from the dismissal date and, even accounting for the Acas conciliation which ‘extends’ the three month period, the employer argued the Claimant’s claims were issued out of time.
The Employment Judge made a finding of fact that the effective date of termination was 29 June 2017. However, the Judge used his discretion to allow an extension of the three month limit because it was just and equitable to do so, partly on the basis that “the Claimant is a vulnerable individual who has dyslexia” and the terms of the letter were “unclear and contradictory”.
The Employment Appeal Tribunal and finally the Court of Appeal rejected the employers’ appeals against this decision.
Underhill LJ considered that “the terms of the letter were on any reasonable view at least ambiguous”. The letter stated that it was notifying the Claimant of the decision to dismiss, and did not say that it was confirming the decision actually made on 29 June 2017. Furthermore, although the letter set out a dismissal date of 29 June 2017, the decision to dismiss was expressed in the present tense (“I am writing to inform you”; “I have no option”) and was stated to be “with immediate effect”. Given the Claimant’s severe dyslexia, it was reasonable that he might consider his formal dismissal as being effective from when he received the letter.
Clear and unambiguous writing is essential in any disciplinary or grievance process, and particularly in formal communication to dismiss an employee. Had Lowri Beck’s letter merely confirmed the earlier communicated decision to dismiss made on 29 June 2017 (and referred back to this), the Claimant would potentially not have been led to believe he had a longer period to issue his claim than in fact he did, or the Tribunal may have agreed the claim was out of time.
If employers are in any doubt of the best way to carry out a disciplinary process, or to communicate a dismissal effectively and fairly, it is strongly advised to seek legal advice.
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