Laura Macdonald | Senior Associate

Timing the Notice of Termination

In the recent case of Newcastle Upon Tyne NHS Foundation Trust v Haywood, the Supreme Court considered the following question: where an employment contract is silent on when notice is deemed to be given, when does notice of termination take effect?

Is it (i) when the letter would have been delivered in the ordinary course of post; (ii) when it was in fact delivered to that address; or (iii) when it comes to the attention of the employee and s/he has read it or had a reasonable opportunity to do so?

The Supreme Court upheld the Court of Appeal’s decision by a majority of 3 to 2 ruling that (iii) would apply i.e. when it is actually received by the employee and s/he has read it or had a reasonable opportunity to read it.

The Respondent in this case, Mrs Haywood, was dismissed by reason of redundancy and her contract of employment specified a notice period of 12 weeks but not how such notice should be given. On 20 April 2011, the employer sent a letter giving written notice of termination by recorded delivery to Mrs Haywood’s address. However, she was on holiday at that time and therefore did not read the letter until 27 April 2011. She turned 50 on 20 July 2011 and redundancy after her 50th birthday would have entitled her to a considerably more generous pension than redundancy beforehand. Therefore, if delivery was deemed effective before 27 April, she would have received the much lower pension.

The majority of the Supreme Court held that the approach which had been consistently taken by the EAT was correct and therefore notice was only deemed effective when it was read by the employee (or s/he had a reasonable opportunity to read it). Therefore, it was not deemed effective until 27 April, and she was entitled to the higher pension. It was noted that “receipt of the notice was always required and arguably by a person authorised to receive it” and “there was no reason to suppose that this approach would cause any real difficulty in practice” as an employer could take “express alternative provisions in the contract or ensure notice of termination was received in sufficient time to allow the employment to terminate on a specified day.” The majority also held that it was important for both employer and employee to know whether and when the employment had come to an end.

If you are an employer or an employee, and you believe you are affected by issues raised from this decision or should you require any further information please contact us online by clicking here or speak to a member of our specialist team on 0333 222 1855.

Laura Macdonald

Laura Macdonald

Employment Law Team

“I strive to provide clear and practical advice to clients, focussing on the individual or organisation’s particular circumstances and requirements.”

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