Although an employment contract has to state the length of notice of termination, it does not have to state how notice should be given. In Newcastle upon Tyne NHS Foundation Trust v Haywood, the Court of Appeal held that if the contract is silent on when notice is deemed to be given, it takes effect when the recipient receives the letter.
After a merger of two NHS bodies, Ms Haywood was told at a meeting on 13 April 2011 that she was at risk of redundancy although a final decision had not been taken. She accepted that her post was redundant but asked that no decision should be made while she was on annual leave from 19 April until 5 May 2011. Following the meeting she went on sick leave until 20 May 2011, during which time she was abroad from 19 to 27 April.
The Trust sent a recorded delivery letter to her home which Ms Haywood’s father in law collected from the sorting office on 26 April 2011 and left for her on her arrival back from holiday. The Trust also sent a letter by email to her husband's email address. Both letters purported to terminate her contract with 12 weeks' notice terminating on 15 July 2011. Ms Haywood said that she opened and read both letters on return from her holiday on 27 July.
In February 2012, Ms Haywood claimed that she had received insufficient notice of termination. This was crucial in terms of her pension because, if the date of termination was after 20 July 2011 when she turned 50, she was entitled to a higher pension. If notice of termination was given by 26 April, however, she would only receive the lower pension. Her contract did not state expressly how termination of notice should be given.
High Court decision
The judge had to decide whether termination of notice took effect when the Trust posted the letter, when the letter arrived at her home or when Ms Haywood actually read it.
The High Court judge held that, as notice had only been given once Ms Haywood had actually read the letter of dismissal on 27 April 2011 (which meant that the contents were communicated to her), she remained employed by the Trust up to and including 20 July 2011.
Court of Appeal decision
Dismissing the Trust’s appeal, the Court of Appeal (by a majority) held that the contract contained an implied term that Ms Haywood and the Trust could give notice to each other in writing or orally, and that, if either of them gave notice in writing, that notice could be sent by post. If it was sent by post, however, it had to be received in order to be effective.
The fact that the letter got to her house (thanks to the intervention of her father in law) did not mean that she received it when he left it there, although the onus was on the employee to show that they did not receive it at that time. In this case, the High Court judge had made a finding of fact that Ms Haywood had shown that she had not received (and read) the recorded delivery letter until about 8.30 am on 27 April 2011.
As for the e-mail letter, the Court held that Ms Haywood had not given permission to the Trust to write to her at that address.
As a result, it upheld the decision of the High Court that, as she had not read the letter until 27 April, she was entitled to the higher pension.
This case illustrates the fact that the notice will not necessarily be effective until it is actually received and read by the employee. Employees should however proceed with caution as this case was determined on unusual facts and the Court was willing to accept that Ms Haywood had not read the letter until 27 April.