In the case of Newcastle upon Tyne NHS Foundation Trust v Haywood, the Court of Appeal considered when notice of termination is deemed to be effective when the notice is sent by post. The Court held that where an employer posted a letter to an employee giving notice of termination, in the absence of a specific contractual term identifying when the notice was to take effect, it would take effect from the date the employee had personally taken delivery of the letter.
The Trust decided to dismiss the employee by reason of redundancy and sent the employee a letter by recorded delivery purporting to terminate her contract with 12 weeks’ notice. The letter was posted on 21 April 2011, however, the employee was on holiday and Royal Mail was therefore unable to deliver the letter as it required a signature. The employee’s father-in-law collected the letter from the sorting office on 26 April 2011 and the employee received the letter on 27 April 2011 after she returned from holiday.
The central issue was when the notice took effect. This was particularly important in this case as if the notice expired after 20 July 2011 the employee was entitled to receive her pension at a higher rate.
The Court held that notice had only been given once the employee had received the letter of dismissal as that was when the notice of dismissal had been communicated to her.
Although the appeal judges adopted a different approach and all had slightly differing views, the Trust’s appeal was dismissed on the basis that the employee had to receive notice before it could take effect.
In this case it was held that the notice had not been received until 27 April 2011 upon the employee’s return from holiday. As a result, the notice period did not expire before 20 July 2011 and she was therefore entitled to receive her pension at the higher rate.
Given the differing view of the appeal judges in this case, it is advisable on sending notice to assume that it is effective on actual reading, and when receiving notice to assume that it is effective when delivered, irrespective of whether it has been read.
Ideally, new contracts should make express provisions as to when notice takes effect to remove any uncertainty. Where this is not possible, the best way to be certain of the date on which notice takes effect is to give the notice verbally, in a face-to-face meeting, and then confirm the notice in writing at the meeting.
There are clearly risks in sending postal notices, particularly if the employee is absent from work. Employers should take care about how notices are sent and received to ensure there is clarity as to the date the notice takes effect, particularly in cases such as this where there is a significant cost impact if the notice is not properly delivered within a certain time period.
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