The recent case of Newcastle Upon Tyne NHS Foundation Trust v Haywood has highlighted how important it is for employers to understand when notice is validly communicated to employees.
In this case, the NHS Trust planned to serve notice of redundancy to their employee, Mrs Haywood, before her 50th birthday on 20th July 2011 since, after this cut-off, she would be entitled to a far greater pension sum. The Trust sent a notice letter by recorded delivery on 20th April 2011 detailing that Mrs Haywood’s 12 week notice period would expire on 15th July 2011, 5 days before she turned 50. However, Mrs Haywood was on holiday in Egypt at the time and did not read the letter until her return, a week after the notice letter was delivered to her home.
Mrs Haywood argued that the notice period did not begin to run until she actually read the notice letter, meaning her contract expired after she turned 50 and she was entitled to the higher pension sum. The tribunal agreed with Mrs Haywood, finding that notice was served when it was received by Mrs Haywood and not when it was delivered. It did not matter whether the employer knew for sure that Mrs Haywood was away from home and would not receive the notice when it was delivered. Accordingly, she was entitled to the higher pension rate.
The ruling is consistent with the common law principle that notice, however it is given, must be clear, unambiguous and understood by the recipient. When notice is given by letter, many employers will assume that it runs from that date, or even specify that the letter will be deemed to have arrived a specific number of days after posting and that the notice period will begin then.
In the vast majority of cases, the stakes will be considerably lower and this will not be problematic. However, this case demonstrates that relying on deemed receipt can be risky when time is a crucial factor; for example, where an employee intends to serve notice to an employee prior to them attaining two years’ service in order to avoid the risk of an unfair dismissal complaint.
In time-sensitive cases, employers should consider giving the employee a notice letter in person. Alternatively, since valid notice can be given verbally, the employer could speak to the employee in person or by phone and follow that conversation with a letter confirming that notice runs from the date of the conversation.
If your organisation is affected by this issue, get in touch with your Employment Solicitor or HR Consultant who will be happy to provide further advice.