In some situations you might send an employee notice of termination of employment by post. According to the Court of Appeal, when does this notice take effect – when it’s posted or when it’s read by the employee?
The case of Newcastle upon Tyne NHS Foundation Trust v Haywood 2017 contains an important ruling regarding notice of termination of employment served by post and when it takes effect. This is important because one day can make all the difference between a successful and an unsuccessful claim. Ms Haywood was employed by Newcastle upon Tyne NHS Foundation Trust (the Trust) as an associate director of business development.
In April 2011 she was informed there was at risk of redundancy. She was due to turn 50 on 20 July 2011 and a redundancy after her 50th birthday entitled Ms Haywood to a much more generous pension. On 20 April 2011, the Trust issued three letters confirming redundancy and giving formal notice that her employment was being terminated. In accordance with her contract, Ms Haywood was given twelve weeks’ notice and her employment was to be terminated on 15 July 2011.
The Trust issued the following three letters: A letter, by recorded delivery, to Ms Haywood’s home address. This was left there on 26th April. However, Ms Haywood was on holiday in Egypt at the time. She returned home on 27th April and read this letter at about 8.30am. A letter sent by ordinary post (also read on 27th April). A letter sent by e-mail to Ms Haywood’s husband’s personal e-mail account which he read on 27th April.
It was accepted that the lower pension would only be payable if notice of termination had been given by 26th April 2011.
This meant the Court of Appeal had to decide on what day did the notice of termination take effect.
Was it on the day of delivery or when Ms Haywood read the letter on her return from holiday? The Court of Appeal held that, in the absence of an express term in the employment contract, when notice of termination is sent by post it must be received by the employee in order to be effective. It cannot be implied that it is deemed to take effect on a particular date.
This meant the notice was served when Ms Haywood read the letter – not when it was delivered – and she was entitled to the enhanced pension.
The Court of Appeal also noted that Ms Haywood had not given permission for the Trust to send correspondence to her husband’s personal e-mail address. So service of that letter was a non-starter.
For contractual purposes, the notice of termination will take effect when the employee reads the letter – not when it lands on their doormat. If you want certainty, one option is to hand the notice to the employee in person. Alternatively, you can deliver the notice verbally, e.g. over the phone, and follow it up in writing.
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