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ANTONY SENDALL: HOW COULD YOU HAVE FAILED TO NOTICE?

Antony Sendall writes, sometimes the giving of notice to terminate a contract of employment can be very time-critical. In particular, it is important to understand from what date notice will begin to run. This was undoubtedly the case when Newcastle upon Tyne Hospitals NHS Foundation Trust (“the Trust”) decided to give notice to terminate Mrs Haywood’s contract for redundancy.

On 20 April 2011, the Trust sent the letter giving written notice of termination. It was sent by recorded delivery to Mrs Haywood’s home address. Mrs Haywood was away on holiday and the Trust was aware of that fact. The letter was collected from the local sorting office by her father-in-law on 26 April 2011 and left by him (unopened) in her house on the same day. She returned from holiday on 27 April 2011 and read the letter. The date on which the 12 week notice period started to run was of critical importance. If notice commenced on 27 April 2011, it expired on 20 July 2011, which was Mrs Haywood’s 50th birthday. If Mrs Haywood was 50 at the date of termination, she was entitled to claim a non-actuarially reduced early retirement pension. This would not apply if she was still only 49 at the date of termination.

Her contract of employment was silent as to the issue as to when the notice period would begin to run, so the question fell to be determined on the basis of common law.

The key questions for the Supreme Court were:
1.    If an employee is dismissed on written notice posted to his home address, when does the notice period begin to run?
2.    Is it when the letter would have been delivered in the ordinary course of post?
3.    Or when it was in fact delivered to that address?
4.    Or when the letter comes to the attention of the employee and he has either read it or had a reasonable opportunity of doing so?

The Supreme Court by a majority of three to two (Lord Lloyd-Jones and Lord Briggs dissenting) upheld the decisions of the High Court and Court of Appeal and dismissed the Trust’s appeal. Lady Hale (with whom Lord Wilson and Lady Black agreed) concluded that, in the absence of express contractual provision, the notice only took effect when it had actually been received by the employee and the employee had either read or had a reasonable opportunity of reading it. In doing so, the majority followed the consistent previous approach of the Employment Appeal Tribunal and held that the common law rule in non-employment cases was not as clear and universal as had been suggested. Receipt of the notice was always required, and arguably by a person authorised to receive it. Even after a statutory presumption of receipt at the address was introduced, this was still rebuttable.

LEARNING POINT: The Trust could have avoided this issue either by inserting an express provision in the contract of employment dealing with the issue of when notice is deemed to commence or by ensuring that notice of termination was received in sufficient time to allow the employment to terminate on a particular specified day.

Newcastle upon Tyne Hospitals NHS Foundation Trust (Appellant) v Haywood (Respondent) [2018] UKSC 22 On appeal from [2017] EWCA Civ 153 JUSTICES: Lady Hale (President), Lord Wilson, Lady Black, Lord Lloyd-Jones, Lord Briggs
Posted: 12.06.2018 at 09:49
Tags:  Comments  Employment Law
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