Notice of termination and when it takes effect
The Supreme Court has held in Newcastle upon Tyne Foundation Trust v Haywood that, where there is no contractual provision governing when a notice of termination served by an employer takes effect, the contractual notice only takes effect when the employee has personally taken delivery of the letter containing the notice.
The claimant's employment was transferred to Newcastle upon Tyne Foundation Trust (the Trust) on 1 April 2011 and she was informed that she was at risk of redundancy. At a consultation meeting the claimant alerted the Trust's representatives to the fact that she was on annual leave from 19 April until 3 May. For some of this time she was on holiday in Egypt. On 20 April the Trust sent a letter by recorded delivery which was collected by the claimant's father-in-law and left at the claimant's home, and one via email to her husband's email address. The claimant read the recorded delivery letter on 27 April on her return from holiday.
The central issue was whether the claimant received her contractual entitlement to 12 weeks' notice of dismissal before her 50th birthday on 20 June 2011, in which case she would receive a lower pension than if her notice period expired on or before her 50th birthday. Notice of termination needed to have been given by 26 April 2011 in order for the lower pension to be payable. The email was not relied on by the Trust so the letter relevant to the appeal was the one sent by recorded delivery. The Supreme Court held that the notice of termination took effect on 27 April and the claimant was therefore entitled to receive the higher pension.
The decision in Haywood clarifies that it will only be once an employee has personally taken delivery of a notice of termination of employment that the notice is effective. However, as the Court made clear there is nothing to prevent the parties to a contract of employment from making express provision, both as to how notice may or must be given, and for when it takes effect. If there are no provisions contained in the contract then, in order to have certainty that a notice of termination has been properly served and has actually been received by the recipient, the employer should ensure that the notice is given personally.