So you’ve decided to terminate an employee’s employment. You’ve sent written notice by normal post, by recorded delivery and, for good measure, to their partner’s email address - just to make sure it definitely gets there on time. An employer may be forgiven for thinking they had done enough to guarantee when that notice of termination takes effect, however in Newcastle Upon Tyne NHS Trust v Haywood the Court of Appeal held that this wasn’t the case.
The Claimant worked for Newcastle Upon Tyne NHS Trust as an associate director of business development and on 1 April 2011 was told she was at risk of redundancy. She subsequently went on holiday to Egypt and a day after leaving, her employer served written notice to terminate her employment using the methods described above. However, as the Claimant was abroad she did not read the letters or email until she returned a week later.
When notice took effect was particularly important as depending on the date the Claimant would either have been 49 or 50 when her employment ended. If the notice period commenced when the Claimant actually read the letters, she would have been 50 and therefore entitled to a considerably more generous pension than she would have been had the notice taken effect from either when it was posted or delivered when she would have still been 49.
The Court of Appeal held that the notice started when the Claimant read the letter and not beforehand. What was important in this case was that the Claimant’s contract of employment had no express clause as to when notice would take effect. In addition, the email to her partner’s email address was held to be ineffective as she had not given the organisation prior permission to use it as a contact address for her.
Whilst this may seem like a very specific set of facts, it can often be difficult to contact certain employees, especially when there is an ongoing redundancy process or when they are on sick leave. When this is the case and there is no express notice clause in an employee’s contract, employers can be left in a state of limbo, uncertain whether notice has even started.
To mitigate against this uncertainty, it is important to:
- review the notice clauses in your contracts of employment to ensure they contain a clear, unambiguous statement as to when notice will be deemed to be served; and
- consider firstly delivering notice face-to-face or via a telephone call before following up in writing to circumvent any issues associated with delivery and receipt.
This will help ensure that notice begins when it is intended.