Serving notice: When will notice take effect?
An employee’s entitlement to notice (i.e. how much notice they are entitled to receive) is clear through either an express provision in the employment contract and/or the statutory minimum. However, in the absence of an express contractual provision, the timing of when any notice given may be deemed to have been received is less clear. This question was addressed in Newcastle upon Tyne NHS Foundation Trust v. Haywood.
Ms Haywood was made redundant following the merger of two NHS bodies. This decision was communicated through letters sent to Ms Haywood by recorded delivery, standard mail and email.
Timing is crucial in this case. If the notice was deemed to have been received by 26 April, then Ms Haywood’s 12 week notice period would continue to her 50th birthday, resulting in her receiving a higher pension. There was nothing in her employment contract in relation to when notice would be deemed to have been received.
The letters were all sent on 20 April, when Ms Haywood was on holiday. Her father collected the recorded delivery letter from the Post Office and left it in her home on the 26 April. She returned from holiday in the early hours of the 27 April, not looking at the letter until around 8.30 that morning. Another letter was sent by standard mail but this was not analysed by the court. An email was also sent to Ms Haywood’s husband’s email address and he read this at 10.14am on 27 April.
The High Court held that Ms Haywood was required to have read the letter for the notice to be effective. The Court of Appeal took a slightly less stringent view. It was held that where there is no express contractual term then common law contractual principles must be applied. The notice only takes effect from the date on which it is received by the employee, meaning that they have personally taken delivery of the letter. In this case that was the 27 April, once Ms Haywood had returned from holiday.
The notice sent by email was deemed to be ineffective for a variety of reasons. This included the fact that it was sent to her husband, that she had provided her employer with a postal address and that she had not given permission for that email address to be used.
It is surprising that the question of when notice is received is not addressed more often. The NHS Trust has stated its intention to appeal to the Supreme Court. Regardless, this judgment serves as a reminder of the importance of express contractual provisions to provide both parties with absolute certainty throughout their relationship.