To post or not to post notice of dismissal?

When is a notice of termination of employment effective if it is posted to an employee? We consider the recent decision of the Court of Appeal in Newcastle upon Tyne NHS Foundation Trust v Haywood [2017] EWCA Civ 153, where the Court had to consider the date on which a notice of termination of employment, which was posted to an employee, took effect.

Facts

Ms Haywood was employed by Newcastle upon Tyne NHS Foundation Trust (the Trust) as an associate director of business development. She was notified on 1 April 2011 that she was at risk of redundancy. During a consultation meeting, Ms Haywood informed the Trust that she was going to be on annual leave between 19 April and 3 May 2011 and also indicated that she would be on holiday in Egypt for part of this period.

On 20 April 2011, the Trust issued letters confirming Ms Haywood's redundancy and giving notice to terminate her employment. The notice was 12 weeks, which was in accordance with her contract and statutory minimum notice entitlement, and her employment was to be terminated on 15 July 2011.

The Trust issued three letters to Ms Haywood, as follows:

• One letter was sent by recorded delivery to her home address and, as Ms Haywood was not at home, a delivery slip was left at her house. Ms Haywood's father-in-law collected the recorded delivery letter from the post office on 26 April and left it at Ms Haywood's home on the same day. Ms Haywood returned home from her holiday on 27 April and confirmed that she read this letter at about 8.30am on 27 April
• Another letter was sent by ordinary post but no specific findings were made as to when this letter was received
• The other letter was sent by email to Ms Haywood's husband's email account. Mr Haywood read the email on 27 April.

The claim in this case arose due to the importance of when Ms Haywood's employment terminated. This was because Ms Haywood's 50^th birthday fell on 20 July 2011 and if her employment terminated before that date, she would receive a lower pension than if her employment ended after her 50^th birthday. It was accepted that notice of termination therefore needed to have been given by 26 April 2011 in order for the lower pension to be payable.

High Court decision

The High Court concluded that the notice of termination was only effective when it was actually communicated to Ms Haywood which, based on findings made by the Court, was when Ms Haywood actually read the letter on the morning of 27 April 2011 on her return from holiday. On that basis, Ms Haywood had been employed on her 50^th birthday and was entitled to the higher pension benefit. The Trust appealed to the Court of Appeal.

Court of Appeal decision

The Court decided by a majority to dismiss the appeal and uphold the original decision of the High Court. It concluded that, in the absence of an express term in the employment contract, if notice of termination is sent by post, it must be received by the employee in order to be effective and it cannot be implied that it is deemed to take effect on a particular date.

The Court went on to find that simply posting a notice of termination cannot be sufficient by itself, although it did accept that posting a correctly addressed and properly stamped letter gives rise to a rebuttable presumption of receipt and the employee would then have the burden of showing that they did not receive it. However, the Court also stated that there was no irrebuttable presumption that a notice has been received by the employee once it has been delivered to their home. Accordingly, the Court found that Ms Haywood did not receive the notice of termination sent by recorded delivery when her father-in-law left it at her house on 26 April but only when she read it at approximately 8.30am on 27 April 2011.

The Court considered whether the notice of termination letter, which had been sent by email to Ms Haywood's husband, was effective. It decided that it was not effective, principally on the grounds that Ms Haywood had not given permission to send communications to that particular email address.

Accordingly, the Court of Appeal held that the notice of termination only took effect from the date it was received by Ms Haywood when she had personally taken delivery of the notice.

Comment

This case highlights the importance of certainty when issuing notice of termination of an employment contract, particularly where (as in this case) the date of termination is critical. Often employers send notices of termination either by ordinary post or by recorded delivery. This case illustrates the fact that the notice will not necessarily be effective until it is actually received and read by the employee and this can create uncertainty, particularly where the employee is away from home or claims to have been away and not read the letter giving notice of termination until a later date.

One method to ensure certainty as to when notice of termination is effective is to communicate that notice in person, either at a final consultation meeting or reconvened disciplinary meeting at which the decision to issue notice of termination is given verbally and the employee is handed a letter confirming the notice. Another approach would be to contact the employee by telephone to issue notice verbally and state that a letter confirming the notice of termination is being sent to them. In such circumstances, the date on which notice of termination is given will be clear.