An employment contract may contain an express term specifying when notice of termination of employment is deemed to be received.

However, if the contract of employment is silent on this point, the question arises as to when notice is effective. Is this when the notice is posted, delivered or actually read by the employee?

The question arose in the case of Newcastle upon Tyne NHS Foundation Trust v Haywood. Ms Haywood, an employee of the Trust, was notified that she was at risk of redundancy. During a consultation meeting Ms Haywood informed the Trust that she would be on annual leave from the 19 April to 3 May.

On 20 April, the Trust sent three letters to Ms Haywood, confirming that she was being made redundant on 12 weeks’ notice, due to expire on the 15 July.

The three letters were sent by varying methods. One, incorrectly dated the 21 April, was sent via recorded delivery. Ms Haywood’s father-in-law picked up the delivery slip from Ms Haywood’s property and collected the letter from the sorting office on the 26 April. Ms Haywood returned from her holiday abroad in the early hours of the 27 April and went to bed. She subsequently read the letter at around 8:30am on the 27 April.

The second letter was sent via standard post. The third letter was sent via email to Ms Haywood’s husband’s email address. This was read by her husband at 10:14am on 27 April.

The question for the Court of Appeal was at what point did the contractual notice of termination take effect? This point in time was particularly important to Ms Haywood, as if service was held to be effective before her 50th birthday on the 20th July, she would receive a lower pension. For this to be the case, notice of Ms Haywood’s termination needed to have been given to her by the 26 April.

Ms Haywood’s employment contract was silent as to when service was effective.

The termination letter sent via email was not effective for a number of reasons, one of which was the fact the email was not sent to Ms Haywood’s email address but rather her husband’s.

The Court of Appeal went on to hold that in the absence of an express term the general principles of common law will apply. Although the Judges were in agreement that the principle of common law should apply, they were surprisingly unable to agree the specifics of the common law rule.

Although the Judges came to the same decision in the end, it was not agreed whether this was due to Ms Haywood’s father-in-law acting on his own initiative and not as an agent for Ms Haywood meaning there had been no personal delivery, or whether due to the certainty rule, actual communication of the termination is necessary as a result of the special nature of an employment relationship.

Practically, where an employment contract is silent, notice of termination is effective only when the employee has personally taken delivery of the notice. In this case, Ms Haywood personally took delivery of the notice when she read the letter on the morning of the 27 April. She was therefore entitled to the higher pension rate as her notice would have expired on 26 July.

Although the legal principals leading to this decision could be clearer, for the time being if an employer wants to ensure it has properly served notice of termination on its employee it should give notice personally.

If you would like to discuss any issues raised in this article, we have specific employment law expertise in advising in this area. For further advice, please contact Joan Pettingill or a member of the Employment Team.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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