This page contains information that has appeared on Sandy Adirondack's legal update website for voluntary organisations at www.sandy-a.co.uk/legal.htm. For current updates, including potential changes that are in the pipeline, see the legal update website.

These websites for each chapter update the 3rd edition of The Russell-Cooke Voluntary Sector Legal Handbook by James Sinclair Taylor and the Charity Team at Russell-Cooke Solicitors, edited by Sandy Adirondack (Directory of Social Change, 2009). The websites are not intended as a comprehensive update and should not be treated as such.

To order a copy of The Russell-Cooke Voluntary Sector Legal Handbook, print out the order form at www.sandy-a.co.uk/bookserv.htm or send an email order by clicking . It costs £60 for voluntary organisations or £90 for others, plus 10% p&p.

Chapter 34
TERMINATION OF EMPLOYMENT

NO-FAULT DISMISSALS FOR MICRO-EMPLOYERS?

Added 17/2/12. This information adds a new section between 34.2.4 & 34.2.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Following its "red tape challenge" on employment-related regulations in October 2011, the government announced on 23 November 2011 that it would launch a call for evidence on the implications of compensated no-fault dismissals for micro-employers with fewer than 10 employees, and on how existing dismissal processes might be simplified. This could potentially include working with ACAS to make changes to their code, or supplementary guidance for small businesses.

The proposals are summarised on the red tape challenge website at tinyurl.com/7nh4llr.

At various times during 2011 (for example, in the plan for growth launched alongside the budget on 23 March 2011) the government said there would be a three-year moratorium, starting 1 April 2011, on new regulation for businesses with fewer than 10 employees and start-up businesses. This is not going to happen, or at least not yet, and small employers should not be under the impression that new legislation will not apply to them. Similarly the media have occasionally given the impression that even current employment legislation will not apply to these micro-employers. This is not the case. The only current employment proposal that relates specifically to micro-employers is the one above, on the possibility of no-fault dismissals.

EFFECTIVE DATE OF TERMINATION
FOR SUMMARY DISMISSAL BY POST

Added 7/11/10. This information updates s.34.8.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The qualifying period and the time limit for bringing unfair and wrongful dismissal claims are based on the effective date of termination (EDT), so this date has fundamental implications for such claims. Where dismissal is without notice for gross misconduct, the EDT is the date the dismissal is communicated to the employee.

A ruling in the Supreme Court on 13 October 2010 confirmed decisions by the employment appeal tribunal and court of appeal that if notice of summary dismissal is sent by post, the date it is communicated to the employee is when the employee actually receives and reads the letter, even if the letter says that dismissal is from the date the letter is written.

Following a disciplinary hearing about an employee's inappropriate behaviour at a private party, Gisda Cyf, a charity based in Wales, had told the employee to expect a letter on 30 November 2006 with its decision. The letter arrived on 30 November and was signed for by the employee's son, but the employee was away from 30 November to 3 December visiting her sister who had just had a baby, and she did not read the letter until 4 December. After going through the organisation's internal appeal procedure, she brought a tribunal claim on 2 March 2007 for unfair dismissal and sex discrimination.

If the EDT was 30 November, when the letter was signed for, she would have been out of time for her tribunal claim, but if the EDT was 4 December, the claim would be within the time legislation. The Supreme Court accepted that she had legitimate reasons for being away over that period and had not deliberately postponed reading the letter, and confirmed that her claim was valid. In its decision, the Court stated that on policy grounds it is important to interpret the time legislation in a manner that is favourable to the employee, and that strict contractual laws concerning termination of contracts should not replace the statutory framework.

Good practice when sending a dismissal notice by post is to give notice to the employee orally, so it is clear that he or she has received the notice, and/or to send it recorded delivery.

The decision in Gisda Cyf v Barratt is at www.bailii.org/uk/cases/UKSC/2010/41.html.

SANDY ADIRONDACK
Governance and legal training and consultancy
for the voluntary sector
39 Gabriel House, 10 Odessa Street, London SE16 7HQ
Tel 020 7232 0726; fax 020 7237 8117
Email:
Web: www.sandy-a.co.uk