In the recent decision of Newcastle Upon Tyne NHS Foundation Trust v Haywood, the Court of Appeal ruled that where an employment contract is silent on the point, notice takes effect on actual receipt of the notice by the employee.
Ms Haywood worked for Newcastle Primary Care NHS Trust as an Associate Director of Business Development.
Following the transfer of her employment to Newcastle upon Tyne NHS Foundation Trust (the Trust), Ms Haywood was informed by letter that she was at risk of redundancy. Ms Haywood met with two representatives of the Trust on 13 April 2011 to discuss the redundancy situation and informed them that she was on annual leave from 19 April to 3 May and in Egypt from 19-27 April 2011.
Whilst Ms Haywood was away, the decision was made to make her redundant and Ms Haywood was sent a notice of termination by recorded delivery and ordinary post on 20 April 2011. Notice of termination was also sent by email to her husband's email address, however, neither the letters nor the email were seen by Ms Haywood until she returned from holiday on 27 April 2011.
Ms Haywood's notice of termination gave her 12 weeks' notice. The date the notice was deemed to take effect was significant because if it was on or before 26 April 2011, her employment would have terminated just before her 50th birthday on 20 July 2011 and her pension entitlement would be reduced significantly.
Although Ms Haywood's employment contract did not specify when notice was deemed to be given, the Trust argued that termination should have occurred 12 weeks after the notice of termination was sent or, alternatively, received at her house.
Ms Haywood disagreed and claimed that the effective date of termination should be 12 weeks after she actually read the notice of termination.
The High Court found in favour of Ms Haywood. The Trust appealed.
Despite disagreeing amongst themselves as to the reasoning why, the majority in the Court of Appeal held that notice of termination was given on the date Ms Haywood actually personally received the notice rather than on delivery or any deemed date of receipt of the notice.
Accordingly, Ms Haywood received notice on 27 April 2011 when she actually saw and read the letter. This meant that her redundancy took effect after her 50th birthday and she was entitled to a more generous pension.
Where possible, employers should ensure that certainty around the service of notice is set out in employment contracts i.e. how notice may be given and when notice is deemed to take effect.
In the absence of a relevant provision in the employment contract, employers should communicate notice in person with written notice of termination given by hand.