Where the employment contract is silent on when notice of termination is deemed to be given, notice is only service on actual receipt of it by the employee, according to the Court of Appeal in Newcastle Upon Tyne NHS Foundation Trust v Haywood.
In this case, the notice was not deemed to have been served on the employee until after her 50th birthday, which resulted in her accruing a considerably more generous pension entitlement.
- Serving notice when you intend to, is not as straightforward as it may seem. You should ensure you follow any notice requirements set out in the employment contract, so that the notice is validly served.
- Where there are no notice requirements in the employment contract, that notice will onlybe served when it is actually received by the employee.
- As the law stands then, if you want to have certainty that you have properly served notice of termination of employment, and that it has actually been received by the employee (rather than just received at their home), you should give that notice personally.
- Incorrect service of notice can be very costly for employers. Here the employee qualified for a larger pension entitlement. In other similar cases, employees have qualified for bonus or share payments which they would not otherwise have received had notice been served properly. You should ensure your employment contracts contain adequate provisions as to when notice is deemed to be served, so you avoid these risks.
On 1 April 2011 (April fool’s day, of all days!), Ms Haywood was put at risk of redundancy. She was approaching her 50th birthday on 20 July 2011. After her 50th birthday, she became entitled to a considerably more generous pension than if she had been made redundant beforehand.
Ms Haywood was contractually entitled to be given 12 weeks’ notice, but her contract was silent about how notice was deemed given.
On 19 April 2011, Ms Haywood went on holiday, returning on 27 April. On 20 April, her employer sent notice of termination by recorded delivery and ordinary post, and an email to her husband’s email address. She read the notice on her return from holiday.
The Court of Appeal judges all gave different reasons, but the majority held that contractual notice of termination was only given on actual receipt rather than on delivery or any deemed date of receipt. Ms Haywood thus received notice on 27 April and termination took place after her 50th birthday.
The notice served by email was not effective for a variety of reasons, including that the email address belonged to her husband, but also because Ms Haywood had provided a postal address and had not given permission to send communications to her at this email address.