When Does Notice of Termination Take Effect?
When the employee has personally taken delivery of the notice confirmed the Court of Appeal (CoA) in the case of Newcastle Upon Tyne NHS Foundation Trust –v- Haywood, unless the Contract of Employment contains a provision governing when the notice may otherwise take effect.
In this case, Ms. Haywood was employed as an associate director of business development by Newcastle Primary Care NHS Trust. Her employment subsequently transferred to Newcastle Upon Tyne NHS Foundation Trust (the Trust) on 1 April 2011 following a merger of NHS bodies. Ms Haywood was notified then that she was at risk of redundancy and she explained to the then employer, the Trust, that she would be on annual leave from 19 April to 3 May 2011. Nevertheless, the Trust sent 3 letters to Ms. Haywood on 20 April 2011 purporting to terminate her employment with 12 weeks’ notice, resulting in a termination date of 15 July 2011. The letters were sent by various means (recorded delivery, standard post and email to Ms Haywood’s husband).
The expiry date of the notice period was however critical as Ms. Haywood reached the age of 50 on 20 July 2011, at which point she would be entitled to receive a greater pension than that which she would receive if her notice period expired before her 50th Birthday. Ms. Haywood’s Contract of Employment did not include any provision explicitly governing the issue and delivery of notice. Accordingly, the Court of Appeal concluded that in the absence of an express contractual term specifying when the notice would commence, it would do so on the date it was received by the employee. In this instance, Ms Haywood did not personally take delivery of the letter containing the notice until 27 April 2011, on her return from holiday. Consequently, Ms. Haywood’s employment did not terminate until after her 50th birthday and she was entitled to the higher pension.
Although the delayed delivery or receipt by an employee of notice of termination may not be within the employer’s contemplation at the time of issuing the notice, this case is an important reminder that where the notice provisions simply state that notice will be “given”, this must be personally received before the notice will take effect. Accordingly, the anticipated delivery/receipt should be borne in mind when calculating the employee’s last day of employment.
For more information please contact Nicola Gray or Martin Sinclair, or call 01224 632464.
