When does written notice of termination take effect?
In the majority of cases it is fairly easy to identify when notice of termination of employment has been given, either because it is given verbally or the contract may include a clause setting out when notice is deemed to be received. However, problems can occur when notice is given in writing but is not received or read on the day it is sent. At what point is termination effective - when the letter is posted, when it's delivered or when the contents are received?
In the case of Newcastle Upon Tyne NHS Foundation Trust v Haywood Ms Haywood was being made redundant. She had a holiday to Egypt booked during the redundancy consultation period and this resulted in notice of termination being sent to her by post while she was away. The Trust sent 3 letters to her on 21 April confirming the redundancy and purporting to give 12 weeks' notice expiring on 15 July. One letter was sent to her home by recorded delivery - Ms Haywood's father collected the letter from the sorting office and it was at her home when she returned from holiday in the early hours of 27 April. She went to bed and didn't read the letter until she got up at approximately 8.30am on 27 April.
The second letter was sent by standard mail and the third one was sent to Ms Hayward's husband's email address and he read the email on 27 April.
If Ms Hayward's notice expired before her 50th birthday on 20 July she received a lower pension than if the notice expired after she reached 50. In order to expire before her 50th birthday she had to have been given notice by 26 April. The wording of the termination clause in Ms Hayward's contract required her to have received and read the letter terminating her employment before her notice period would begin.
The High Court found that the notice was only effective on 27 April after she had read the letter. The Trust appealed. Although the Court of Appeal disagreed that it was necessary for the employee to have actually read the letter, they dismissed the appeal with the majority of judges deciding that the notice takes effect on the date the employee personally takes delivery of the letter.
It is not clear whether this decision is to be appealed to the Supreme Court. The finding of the Court of Appeal leaves employers in a situation where the only way to be certain that notice of termination has been effectively served is to deliver a letter to them personally (assuming that the contract of employment does not expressly preclude this as a valid means of service). That way the employer knows the employee had received the correspondence rather than it being delivered to their home address while they are away.