Once a decision to serve notice has been taken, it is important for both the employer and employee to understand when that notice will end. As a recent decision from the Court of Appeal shows, this is not always straightforward.
Newcastle upon Tyne NHS Foundation Trust v Haywood
In April 2011 Ms Haywood was notified that she was at risk of redundancy. During a consultation meeting she explained that she was going to be on holiday from 19 April until 3 May 2011. However, on 20 April 2011, her employer sent her three copies of a letter by different means confirming her redundancy and serving her with 12 weeks' notice of termination to end on 15 July 2011.
The key issue in this case was whether or not Ms Haywood received her contractual entitlement to 12 weeks' notice of dismissal before her 50th birthday on 20 July 2011 - if she did then she would receive a lower pension than if her notice period expired on or after her 50th birthday. Notice of termination needed to have been given by 26 April 2011 in order for the lower pension to be payable.
In respect of the copy letters sent to Ms Haywood to serve her with notice, one of these was sent by recorded delivery and a slip was left at Ms Haywood's house on 21 April while she was on holiday in Egypt. Ms Haywood's father-in-law collected the recorded delivery letter from the sorting office on 26 April and left it at Ms Haywood's home on the same day. She returned home from her holiday in Egypt in the early hours of 27 April, went to bed and subsequently read this letter at about 8.30am on 27 April.
The second letter was sent by standard mail, and the final letter was sent by email to Ms Haywood's husband's email address. Ms Haywood's husband read the email at 10.14am on 27 April.
Ms Haywood's contract of employment stated: 'Unless there is mutual agreement that a different period should apply, this employment may be terminated by you or [the employer] by the notice period as set out in Section 1 [here: 12 weeks], subject to [the employer] giving you the minimum statutory period of notice..'
At first instance, the High Court found that, in the absence of an express term, the notice was only effective once Ms Haywood had actually read a letter of dismissal so that the contents were communicated to her, which was on 27 April 2011 upon her return from holiday. The High Court read her contract as requiring notice of termination to have been personally received and read by Ms Haywood before the period of notice could start to run. It was therefore held that Ms Haywood had been employed up to and including 20 July 2011 (her 50th birthday) and she was entitled to the higher pension.
Ms Haywood's employer appealed this decision but the Court of Appeal dismissed the appeal by a majority. Although the Court of Appeal disagreed with the High Court's reading of her contract (taking the view that the contract dealt only with the length of the notice period and not the effective date of the notice), it took the view that in the absence of an express contractual term specifying when a notice of termination is effective, the notice takes effect from the date it is received by the employee in the sense of them having personally taken delivery of the letter containing it. In this case, therefore, the High Court was entitled to make the finding of fact that Ms Haywood did not receive the recorded delivery letter at the time her father-in-law left it at her house, nor when she arrived home in the early hours of 27 April 2011, but that she 'accepted delivery' of it at 8am on 27 April 2011 when she actually saw and read it.
In particular, the Court of Appeal agreed that the notice sent by email was not effective for a variety of reasons, including the fact that it was sent to Ms Haywood's husband's email address, that Ms Haywood had provided a postal address, and she had not given permission to send communications to her at this email address.
This is an important decision for employers. Whilst the Court of Appeal only gave a majority decision (the Judges could not agree on the correct approach) the case does clarify that, in the absence of an express term, there is an implied term in employment contracts that if notice of termination is sent by post, it will only be effective when the employee has personally taken delivery of the notice.
Employers will need to bear this in mind and would be well advised to take steps to confirm receipt of letters of termination, in order to ensure that notice has been effectively given. Ideally, in order to eliminate the risk of future disputes, wherever possible notice should be delivered face to face so there is no uncertainty as to whether or not the employee has actually read the written notice.