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Does an employee need to read a notice of dismissal?

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Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood  [2018] UKSC 22 

Facts

Ms Haywood was entitled to an early retirement pension on or after her 50th birthday and had a 12 week notice period. At a meeting to discuss her possible redundancy on 13 April 2011, Mrs Haywood informed the Trust that she had booked two weeks annual leave from 18 April to 3 May. On 20 April, the Trust issued her with a letter of redundancy dated 21 April, the notice period falling just short of her 50th birthday on 20 July. Ms Haywood opened and read the letter on 27 April on return from her holiday.

Clause 19 of Ms Haywood’s contract of employment read: "this employment may be terminated... by the notice period as set out in [cl.1], subject to [the trust] giving you the minimum statutory period of notice..."

High Court

The High Court determined that since the contract lacked an express contractual provision, notice of termination began when the relevant person received and read the notice. It was necessary to imply a term that Mrs Haywood had a right to be informed, either orally or in writing, of her dismissal. She had to have a reasonable opportunity actually to look at the letter. The Court therefore declared that Mrs Haywood was still employed by the Trust on 20 July 2011 and made various orders relating to the payment of her pension.

Court of Appeal

The subsequent appeal to the Court of Appeal held that the absence of an express contractual term specifying when notice of termination was effective, meant that the date notice took effect was governed by common law contractual principles and in employment cases notice has to be received before it can take effect. As such, the notice took effect from the date Ms Haywood received it in the sense of having personally taken delivery of the letter containing it. Ms Haywood's notice period had therefore started to run when she read the Trust's letter on 27 April.

Supreme Court

The final Supreme Court hearing upheld the High Court’s decision. The approach which had consistently been taken by the Employment Appeal Tribunal for many years was correct. Receipt, in some form, had always been required, and arguably by a person authorised to receive it. If an employer considered that the implied term would cause problems, it could make express provision in the contract, both as to the methods of giving notice and as to the time at which such notices were irrebuttably or rebuttably deemed to have been received.

The Court noted that, “it is important for an employer and employee to know whether or not the employee still has a job.”

Comment

The settled position is that notice of dismissal by post 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.

This case emphasis that best practice from an employee relations perspective is to inform an employee of their dismissal in person and confirm this in writing. Giving due notice of dismissal in person will help avoid any ambiguity about the date of dismissal.

If employers want protections for those occasions when it is not possible to communicate with the employee in person, contracts can be drafted to include provisions that deem when notice takes effect. Although any such provisions would not alter the statutory position with respect to the calculation of the effective date of termination, which is either the date on which the employee's notice expires (where the employee has been terminated with notice), or the date on which termination takes effect (where the employee has been dismissed without notice).

Francesca Jus-Burke

Francesca Jus-Burke Senior Associate

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