Newcastle upon Tyne NHS Foundation Trust v Haywood [2017] EWCA Civ 153

Why care

In this case an employer posted a letter to an employee giving notice of the termination of her employment. When did the notice take effect where there was no express contractual term specified? Was time set running by the posting of the letter, its delivery to Ms Haywood’s (the Claimant’s) home, or her actual receipt of it?

The case

The Claimant, on approaching her 50th birthday, was informed by the Respondent that she was at risk of redundancy. Redundancy after her 50th birthday would have entitled her to a considerably more generous pension than redundancy beforehand. The Claimant was contractually entitled to be given 12 weeks’ notice, but her contract was silent about how notice was deemed given.

The Claimant went on annual leave, and while she was away on holiday the Respondent sent her two letters and an email confirming the redundancy and purporting to terminate her employment with 12 weeks’ notice, to terminate just prior to her 50th birthday. To deprive the Claimant of the more generous pension arrangements the notice needed to have been given by 26 April 2011. If it had, the notice period would have expired before her 50th birthday on 20 July 2011, entitling her to a lower pension than if it had expired on or after that date.

One letter, incorrectly dated, was sent by recorded delivery and a slip was left at the Claimant’s house while she was away. Her father-in-law collected the recorded delivery letter from the sorting office and left it at her home on the same day. She returned home from her holiday in the early hours of 27 April, went to bed and subsequently read this letter at about 8.30am on 27 April. One letter was sent by standard mail. No findings of fact were made as to when this was received. One letter was sent by email to the Claimant’s husband’s email address and he read the email at 10.14 am on 27 April.

The High Court found that, in the absence of an express term, the notice was only effective once the Claimant had actually read the letter of dismissal so that the contents were communicated to her, which was on 27 April 2011 upon her return from holiday. It held that Ms Haywood had been employed up to and including 20 July 2011 (her 50th birthday) and she was entitled to the higher pension. The Trust appealed.

The Court of Appeal dismissed the appeal by a majority. In the absence of an express contractual term specifying when a notice of termination is effective, the notice takes effect from the date it is received by the employee in the sense of them having personally taken delivery of the letter containing it. The Claimant therefore received notice on 27 April and termination took place after her 50th birthday.

In the absence of any contractual provisions as to how notice should be given, the Court of Appeal implied into the Claimant’s employment contract a term permitting the parties to give notice in writing and permitting them to send any written notice by post.

All three judges agreed that the notice sent by email was not effective for a variety of reasons, including the fact that it was sent to the Claimant’s husband’s email address, that she had provided a postal address, and had not given permission to send communications to her at this email address. Additionally, the Claimant’s father-in-law did not have authority to receive the letter on her behalf on 26 April. In the dissenting judgment the judge argued that notice is validly given under a contract when the notice actually arrives at the correct destination, whether the recipient is there to open it or not.

What to take away

The practical take away for employers is that if there are no express terms in the contract of employment then notice of termination of employment is effective only when the employee has personally taken delivery of the notice. This means it has been actually received by the recipient, rather than just received at their home. If there are express terms then employers should ensure that they have complied with any details as to method of service set out in any contractual documentation.