The claimant in Newcastle Upon Tyne NHS Foundation Trust v Haywood was entitled under her contract to 12 weeks' notice of termination of her employment. In April 2011, she was told she was at risk of redundancy. She was 50 on 20 July 2011 and redundancy after her 50th birthday would entitle her to a significantly more generous pension.
On 19 April 2011, the employee went on holiday, returning on 27 April. On 20 April, her employer sent a letter of termination by recorded delivery and ordinary post and an email to her husband’s email address, purporting to terminate the employment on 15 July 2011. She read the notice on her return from holiday.
The question for the court was whether notice expired on 15 July 2011, as specified in the letter, or whether notice was only served when the contents of the letter were received by or communicated to (in other words, read by) the employee.
The Court of Appeal upheld, by a majority, the High Court's decision that she had still been employed on her 50th birthday. One judge found that the notice only took effect when it was communicated to the employee; the second when it was received by her. On either analysis, the letter had only been effective when she read it on 27 April, meaning that notice did not expire before her 50th birthday. She was entitled to a higher pension.
The contract was silent about how notice would be served – often there will be a clause setting this out, for example saying that a notice will be deemed to be received three days after posting. And in many cases notice of termination will be given in person. Nevertheless, it is significant that the decision does not follow the orthodox approach that notice is validly given when a letter containing a notice arrives at its destination, regardless of whether it is opened at that point or not. Instead, the majority preferred to adopt the same line as that taken by the Supreme Court in Gisda Cyf v Barratt, which was a case about the statutory effective date of termination on summary dismissal without notice.