Clarification for employers of when notice of termination takes effect in Supreme Court landmark judgment

The Supreme Court have today provided confirmation that notice to terminate employment does not take effect until an employee has had a “reasonable opportunity” to read such notice. This means that it is now more difficult, absent a specific provision in a contract of employment, for an employer to contend that notice of termination takes affect the day a letter, sent by first class post, should have been delivered.

Mrs Haywood, an employee of the NHS trust, was told in April 2011 that she was at risk of redundancy. Mrs Haywood was entitled to receive 12 weeks’ notice, however, her contract was silent as to how this notice should be given. The NHS issued written notice on 21 April 2011 by letter, sent recorded delivery and ordinary post. Mrs Haywood was on holiday during this period and did not in fact read the notice until 27 April 2011 (after her father-in-law had collected the letter from the post office on 26 April 2011).

For Mrs Haywood, the date upon which she was deemed to have received notice of the termination was crucial – if it was 27 April 2011, she was entitled to a more generous pension by virtue of the fact that her actual dismissal date would have been after her 50^th birthday. If it was before the 27 April 2011, her pension was considerably reduced.

The Supreme Court held that notice of termination was given on the date Mrs Haywood read the notice, that being 27 April 2011, (as she could not have reasonably been expected to have read it any sooner as she was on holiday) rather than the date upon which the Trust would have expected her to have received the notice, which would arguably have been before 27 April 2011.

This case is a timely reminder that there can be ambiguity as to when notice of dismissal takes effect, and to avoid such ambiguity, an employer should consider making express provision for when notice takes effect within the contract of employment. In addition, and as we have always advised our clients, sending dismissal letters by recorded delivery can cause difficulties, as it becomes much easier for an employee to delay matters by simply not signing for the letter (evidencing the fact that such a letter was not read, and therefore notice was not effective).

Furthermore, this is a useful case to encourage employers to think about delivery of important employment documentation more generally – not just dismissal letters. In an ever-increasingly technological world, sending documents by email, or other electronic means, and ensuring that, as a business you have the means of doing so, is likely to be the way forward.

For any clients or prospective clients that wish to obtain advice on their matter, please either contact me or any other member of our Employment Team.

Note: the content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any specific circumstance.