Blog - 08/06/2018
If an employee is dismissed by letter, when is notice effectively given?
Mrs Haywood was employed by the NHS in various posts over many years. In 2011, the Newcastle-Upon-Tyne NHS Foundation Trust (the Trust) identified her post as redundant. Both parties were aware that if Mrs Haywood’s employment was terminated on or after her 50th birthday (20 July 2011) she would be entitled to a higher retirement pension than if her employment were terminated before that date. This meant that notice had to be given on or after 27 April 2011 for Mrs Haywood to receive the enhanced pension.
A meeting was held on 13 April to discuss her redundancy at which Mrs Haywood informed the Trust that she would be on holiday from 18 April for two weeks, returning to work on 3 May 2011. She asked the Trust to not make any decision whilst she was away. On 20 April they sent her written notice of termination (dated 21 April) by email, first class post, and recorded delivery. It was accepted that the letter sent by email was not valid because the Trust did not have permission to communicate via that email address and the dispute then centred around the letter sent by recorded delivery. The recorded delivery slip was left at Mrs Haywood’s house on 21 April. Mrs Haywood’s father-in-law collected the letter on 26 April and Mrs Haywood returned from holiday on 27 April which is when she opened and read the letter.
The issue to be determined was when the notice had been given to Mrs Haywood.
Mrs Haywood’s claim was heard in the High Court in January 2014 which determined that, absent any contractual provisions about the date of receipt of letters, there was an implied term in her contract which provided that Mrs Haywood had a right actually to be informed orally or in writing of her termination. As such, her termination dated was when she saw and read the letter i.e. 27 April 2011.
The Trust appealed. The Court of Appeal dismissed that appeal and stated that there was a rebuttable presumption that when the letter had been delivered it had also been received but that in this case, that presumption was rebutted by the finding that Mrs Haywood did not receive the letter until 27 April.
The Trust appealed to the Supreme Court. The Supreme Court confirmed that, where there is no contractual or statutory term dictating how notice should be given and when it is deemed as received, there is an implied term that notice is given when the letter has come to the attention of the employee and they have read it, or had the opportunity to read it. As such, notice was effectively given on 27 April 2011 when Mrs Haywood had received the letter having returned from holiday.
This case is a timely reminder to make sure that the contract includes a provision which sets out how notice should be given and when it is deemed to have been received to provide certainty from the outset.
If you have any questions regarding this topic or any employment issue, please contact Head of Employment, Linky Trott, or any member of the Edwin Coe Employment team.
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