Almost a year ago we reported on the case of Newcastle upon Tyne NHS Trust v Haywood, which concerned a crucial question over when notice of dismissal takes effect. Following a final appeal, the Supreme Court has recently handed down its judgement and clarified the legal position. We have commented on the decision below.
Ms Hayward worked for Newcastle NHS Trust as Associate Director of Business Development. At age 49 she was informed she was at risk of redundancy. She subsequently went off sick with stress before going on holiday. The day after her holiday began her employer sent her a letter and email with written notice to terminate her employment. As she was on holiday she did not read the letter or email until she returned to the UK.
The date at which notice was deemed to be given to her was significant because if notice was deemed to have been given during her holiday, then she would have been 49 at the date of her termination - whereas if notice was only deemed to have been given when she returned and read the letter, then she would have been 50 at the date of termination and entitled to a much more generous pension.
The courts held that, in the absence of a contractual provision specifying when notice would take effect, notice of termination was deemed to have been given when Ms Haywood returned from holiday and read the letter. This meant she was 50 at the date of termination and entitled to the much more generous pension.
The Supreme Court agreed that the approach which had been taken by the lower courts was correct. There was therefore no presumption that notice has been received by Ms Haywood once it had been delivered to her home address.
This final decision is very important as it means that in the absence of an express term in the contract of employment, any notice of termination sent by post must be received by an employee in order to be effective, and it cannot be deemed to take effect on a particular date. In these circumstances notice will only start to run from the date the letter comes to the attention of the employee.
What can employers do?
- Review when notice of termination is effective from – consider phoning or delivering the news face to face first, with a letter and/or email as follow up to the conversation.
- Check your contracts - do they contain a clause stating when notice will be deemed to be given? If not, this may be something you want to consider adding.