An important recent decision of the Supreme Court (Newcastle Upon Tyne Hospitals NUS Foundation Trust v Haywood) has clarified the common law position as to when notice of dismissal communicated by post starts to run.
Ms Haywood was employed as a business development director. The NHS Trust decided that it wished to make her post redundant shortly before her 50th birthday on 20th July 2011 when she would qualify for a non-actuarially reduced early retirement pension.
Her employer wrote to her by recorded delivery on 20 April giving notice or purporting to give 12 weeks' notice to terminate her employment on 15 July 2011. Ms Haywood was on holiday and so the postman took the letter back to the sorting office. Her father-in-law collected it and took it back to her house on 26 April. She read it on 27 April upon her return from holiday. The employer argued that notice had been given no later than 26 April and that it duly expired well before her birthday on 20 July so she was not entitled to the pension benefit. Ms Haywood sued to establish when the notice was, as a matter of law, effective. The High Court held that, in the absence of a contractual term to the contrary, notice could only start to run when it was personally received and read by Ms Haywood on 27 April.
The NHS Trust appealed unsuccessfully to the Court of Appeal who agreed with the High Court. The NHS Trust appealed again to the Supreme Court who confirmed that notice of dismissal by post starts to run when the letter comes to the attention of the employee and she reads it or has a reasonable opportunity to read it.
This common law approach accords with best practice that an employer who dismisses an employee should normally inform them of that in person, and then provide written confirmation. Such an approach is essential if the employer is endeavouring to terminate employment with certainty before a date upon which a contractual right, such as an enhanced pension entitlement, takes effect. Contractual certainty can however be provided by an express term that deems notice to take effect at a particular time, say 2 working days after the date notice is sent. Such contractual provisions will not serve to alter the statutory interpretation of the 'effective date of termination' under s 97 of the Employment Rights Act 1996, however the effect of this Supreme Court decision is to create the same rule to all notices of dismissal given by employers to employees.
Practical tip: review your notice provisions in your contract of employment and if necessary incorporate a deeming provision.
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