In the recent case of Newcastle upon Tyne NHS Foundation Trust –and- Haywood  EWCA Civ 153, the Court of Appeal considered this vexed question.
The Trust sent a letter to Ms. Haywood purporting to terminate her employment with 12 weeks’ notice on 20 April, 2011. Ms. Haywood was out of the country on holiday at the time. The Trust posted the letter to Ms. Haywood by recorded delivery. Ms. Haywood’s father-in-law collected the letter from the Post Office on 26 April, 2011, and left it at her home the same day. Ms. Haywood arrived back from holiday in the early hours of 27 April, 2011, and did not read the letter until about 8.30am on 27 April, 2011.
The Court of Appeal had to decide whether Ms. Haywood had received 12 weeks’ notice of dismissal before her 50th birthday on 20 July, 2011, (in which case she would receive a lower pension entitlement). Notice of termination needed to have been given by 26 April, 2011, in order for the lower pension to be payable by the Trust.
The High Court ruled that in the absence of an express term in the contract dealing with the situation, notice was only effective once Ms. Haywood had actually read the letter. This was on 27 April, 2011, when she returned from holiday. She was, therefore, entitled to the higher pension entitlement.
The Trust appealed to the Court of Appeal.
The Court of Appeal did not agree that notice was only effective once Ms. Haywood had read the letter. It considered that notice takes effect from the date when the employee receives it, in the sense of them having personally taken delivery of the letter containing it. In this case, that was not until 8.30 am on 27 April, 2011, when Ms. Haywood actually saw the letter. The Court of Appeal found, therefore, that she entitled to the higher pension entitlement.
This case highlights the importance of certainty when issuing a notice of termination of an employment contract, particularly where (as in this case) the date of termination is critical. Often employers send notices of termination either by ordinary post or by recorded delivery. This case illustrates the fact that the notice will not necessarily be effective until it is actually received and read by the employee and this can create uncertainty, particularly where the employee is away from home or claims to have been away and not read the letter giving notice of termination until a later date.
One method to ensure certainty as to when notice of termination is effective is to communicate that notice in person, either at a final consultation meeting or reconvened disciplinary meeting at which the decision to issue notice of termination is given verbally and the employee is handed a letter confirming the notice. Another approach would be to contact the employee by telephone to issue notice verbally and state that a letter confirming the notice of termination is being sent to them. In such circumstances, the date on which notice of termination is given will be clear.
Note, however, that where dismissal is without notice and an ET is considering the effective date of termination of an employee’s employment (“EDT”), termination is only effective once the employee has read the letter (unless they have deliberately avoided doing so). The EDT is relevant when determining whether an employee has the two years’ service needed to bring an unfair dismissal claim.
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