Newcastle Upon Tyne NHS Foundation Trust v Haywood
Ms Heywood was notified that she was at risk of redundancy. During the consultation process, the fact that she would be on annual leave was brought up – she was due to be away from work between 19 April and 3 May.
The employer wrote to Ms Haywood on 20 April, confirming her redundancy. In fact, it wrote three letters to her on that date:
- The first was sent by recorded delivery. It was collected on Ms Haywood’s behalf from the sorting office on 26 April, and she read it when she got back from Egypt on 27 April.
- The second was sent by regular mail.
- The third was attached to an email sent to Ms Haywood’s husband. He read it on 27 April.
The question was: when did the notice of termination take effect? This mattered because of Ms Haywood’s age. She turned 50 on 20 July. If her contractual 12 weeks’ notice expired before then, her pension entitlement would have been lower then if it expired after that date. The key date was 26 April. Had notice of termination taken effect by that date?
No, said the High Court. Notice of termination took effect when Ms Haywood read the letter on 27 April. She was therefore entitled to the higher pension figure.
The majority of the Court of Appeal agreed. Where the contract doesn’t say when notice of termination takes effect, the key date is the date on which the notice is actually communicated to, as opposed to being posted to or received by, the employee. Notably, sending the letter to Ms Haywood’s husband’s email address didn’t amount to giving notice of termination. Ms Haywood hadn’t given permission for that email address to be used, and that wasn’t altered by the fact that she had used that email address to communicate with her employer a few days earlier.
So, notice of termination of employment in this context only takes effect and sets the clock ticking once the employee has read it. An employer who posts a letter to an employee’s home might not know when that event happens because even if the letter has been delivered, it cannot be assumed that the employee will have personally received it. Checking that an employee will be at home during a particular timeframe may be one way around this, but even that will not give complete certainty that the message has got through. Giving the notice personally is probably the surest way.