If an employee is dismissed on written notice, when does the notice period start?

Is it when the letter would have been delivered in the ordinary course of post? Is it when the letter was delivered? Or it is when the employee actually read the letter?

This was the issue that was put before the Supreme Court in the case of Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood.

Facts of the case

On April 20th, Mrs Haywood’s managers sent her written notice via recorded delivery that she was being made redundant. This was posted while she was on annual leave in Egypt – a holiday her managers were fully aware of.

He father-in-law collected the letter from the local sorting office and left it at her house. On her return on 27th April, she read the letter.

The timing of her dismissal was particularly important in this case because if her employment terminated on or after her 50th birthday, she had the right to claim an early retirement pension. If it terminated before her 50th birthday, she would not have this right.

It is also important to note that her contract stated that her notice period was 12 weeks but it did not state how written notice should be given.

Arguments put before the Supreme Court

The employer maintained that notice had been provided on 20th April, therefore her termination date was before her 50th birthday. However, Mrs Haywood argued it was the 27th April when she had returned from holiday and read the letter.

Decision reached by the Supreme Court

Upholding the ruling of the Court of Appeal, the majority of the Supreme Court agreed with Mrs Haywood stating that ‘It was only on 27 April 2011 that the letter came to the attention of Mrs Haywood and she had a reasonable opportunity of reading it’.

Comment

As the Court remarks ‘Given the vast numbers of working people who might be affected by this issue, it is perhaps surprising that it has not previously come before the higher courts’.

From this judgment, we can take away that if the contract is silent on when notice is considered to be given, a term will be implied that notice takes effect when the employee reads or had a reasonable opportunity of reading the notice.

The Court said ‘If an employer does consider that this implied term would cause problems, it is always open to the employer to make express provision in the contract, both as to the methods of giving notice and as to the time at which such notices are (rebuttably or irrebuttably) deemed to be received. Statute lays down the minimum periods which must be given but not the methods’.

As we can see, the timing of receipt of notice can be important, so if you would like to find out more, contact your Employment Law Adviser who can provide you with guidance.

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