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When Does Notice of Dismissal Take Effect When Delivered to an Employee by Post?

on Friday, 04 May 2018.

In the case of Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood, the Supreme Court held that where an employment contract is silent...

...the notice period will start to run from the date when the employee receives the notice and has read it or had reasonable opportunity to do so.

The Facts

The Claimant, Ms Haywood was employed by Newcastle upon Tyne NHS Foundation Trust (the Trust) when her position became redundant. The Trust sent a letter by recorded delivery to Ms Haywood's home address on 20 April 2011 purporting to terminate her employment with 12 weeks' notice, ending on 15 July 2011.

Ms Haywood was on holiday at the time, which the Trust was aware of, and it was not possible for the letter to be delivered. The letter was taken to the sorting office and collected by Ms Haywood's father-in-law on 26 April. Ms Haywood returned home from her holiday on 27 April and read the letter that day.

The date on which the 12 weeks' notice was effective was significant because it impacted Ms Haywood's pension entitlement. If notice took effect on or before 26 April 2011, her employment would have terminated just before her 50th birthday meaning that her pension entitlement would be significantly reduced. If notice was not effective until after 26 April 2011, her pension would not be reduced.

Ms Haywood brought a claim in the High Court arguing that the notice was only effective once she had actually read the letter giving notice of termination on 27 April. The High Court found in favour of Ms Haywood and the Trust appealed to the Court of Appeal. The Court of Appeal also found in favour of Ms Haywood and dismissed the appeal. The Trust appealed to the Supreme Court.

The Supreme Court

The Trust argued that there was a common law rule that notice was given when the letter was delivered to the relevant address. The Trust relied on a number of common law authorities in support of this argument, primarily arising in the context of notices between landlord and tenant.

By a majority of 3:2 the Supreme Court dismissed the Trust's appeal. They held that there is a consistent line of authority from the Employment Appeal Tribunal that where there is no express provision within a contract, there is an implied term that written notice of dismissal takes effect when the employee has read it or had reasonable opportunity of reading it. The 12 weeks' notice therefore began to run when Ms Haywood personally took delivery of the letter on 27 April 2011. As a result the notice period ended after her 50th birthday and Ms Maywood was entitled to the non-reduced pension.

Best Practice

In order to provide certainty, employers should ensure that all contracts contain express provisions making it clear how notice may be given and when it is deemed to take effect. This may include, for example, express provision for notice to be given by email and deemed to take effect when delivered, or within a specified period following delivery by post to the employee's home address. If an express term is not included, it is always preferable for employers to give notice of termination in person in order to avoid any ambiguity over when notice periods start and end.

The case also serves as a reminder to employers to factor in employee holidays when serving notice as this may affect when notice is deemed effective. This is particularly important where an employer is seeking to terminate employment before a certain date.

For more information, please contact Joanne Oliver in our Employment Law team on 0117 314 5361.

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