When does notice of termination of employment take effect?

If an employee is dismissed on written notice posted to his home address, when does the notice period begin to run? Is it when the letter would have been delivered in the ordinary course of post? Or when it was in fact delivered to that address? Or when the letter comes to the attention of the employee and he has either read it or had a reasonable opportunity of doing so?

We reported last year on a Court of Appeal judgment on the issue of when notice of termination of employment takes effect if the contract of employment is silent on the issue.

On 20 April 2011 the employer sent a letter to Ms H’s home address by recorded delivery, purporting to terminate her contract with 12 weeks’ notice ending on 15 July 2011. However, she was away on holiday. The recorded delivery letter could not be delivered and was taken to the sorting office. Ms H’s father-in-law collected it and took it to her house on 26 April. She read it on 27 April when she returned from her holiday. The issue for the Court was whether 12 weeks’ notice had been served by 26 April 2011. This was important in this particular case because if the notice had expired before Ms H’s 50th birthday on 20 July 2011, it had an impact on her pension entitlement.

As we reported, the Court of Appeal found that in the absence of an express contractual term specifying when notice of termination was effective, the notice took effect from the date Ms H received it in the sense of having personally taken delivery of the letter containing it. Ms H’s notice period had therefore started to run when she read the employer’s letter on 27 April. However, there was disagreement between the judges, leaving room for uncertainty.

The employer appealed against the decision to the Supreme Court. It argued that there was a common law rule that notice was given when the letter was delivered to the relevant address. The Supreme Court dismissed the appeal. It confirmed that in the absence of an express contractual term specifying when a notice of termination is effective, the notice starts to run when the letter comes to the attention of the employee and they have either read it or had a reasonable opportunity of doing so. The Court rejected arguments that the notice would start to run when the letter would have been delivered in the ordinary course of post or when it was in fact delivered to that address.

Comment

As there is no further possible appeal in this particular case, the Supreme Court’s decision gives clarity to employers on this issue.

It remains the case that if an employer wants certainty on the date on which notice of dismissal takes effect and there is no contractual clause that assists, the most prudent option is to call the employee to a meeting and communicate the decision to dismiss verbally. The decision would then be confirmed in writing after that meeting.

Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood

16 May 2018

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