In Newcastle Upon Tyne Hospitals NHS Foundation Trust v Haywood the Supreme Court considered the question of when notice starts to run if an employer posts written notice of termination to an employee and the contract of employment does not contain a term as to when written notice is deemed to be received.
The Supreme Court ruled that notice starts to run when the letter comes to the attention of the employee and they have either read it or had a reasonable opportunity of doing so. It does not matter when the notice would have been delivered in the ordinary course of post or when it was in fact delivered. In this case, the employee was away on holiday when the employer posted the letter giving her notice of termination of employment, and therefore notice did not start to run until she read the letter on return from holiday.
The same approach has already been adopted by the courts for determining an employee's effective date of termination (EDT) for the purposes of statutory employment rights. It is helpful to have the same test for deciding both the EDT and the date when the contract of employment ends. However, the disadvantage of this test is that it involves uncertainty. An employer giving notice by post will not know in advance when notice will start to run and therefore when employment will end. However, as the Supreme Court observed, to achieve greater certainty an employer can include a provision in the contract specifying when written notice is deemed to be received (although this would only change the contractual position, not the EDT for the purpose of statutory rights). In the absence of an express clause, the employer could also hand the letter over in person rather than posting it.