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When does notice of termination take effect?

The Court of Appeal in the case of Newcastle upon Tyne NHS Foundation Trust v Haywood has held that when a contract of employment is silent as to when notice takes effect, it will only be deemed to have been given when the employee receives it.

Background

The Claimant worked for Newcastle upon Tyne NHS Foundation Trust (“the Trust”). In 2011, the Claimant was placed at risk of redundancy. If she was made redundant after her 50th birthday (20 July 2011), she would be entitled to substantially more generous pension provisions. The Claimant had a 12-week notice period and therefore, to avoid her receiving the generous pension provisions, notice would need to be served by 26 April 2011.

The Claimant went on holiday on 18 April. On 20 April, the Trust sent copies of a letter giving 12 weeks’ notice to terminate employment which would expire on 15 July 2011. The letters were sent to the employee’s home address by recorded delivery and standard post. A copy of the letter was also sent by email to the Claimant’s husband’s email address.

The Claimant returned home from holiday on 27 April 2011 and it was not until then that she personally received the letter.

The Claimant argued that because she had not received the letter until 27 April, her notice did not expire until 22 July and therefore, she was entitled to the better pension provisions.

Decision

The High Court found that in the absence of an express term in the contract of employment which states when notice of termination is effective, the notice will not take effect until it is received by the employee. Therefore, the notice did not expire until after the Claimant’s 50th birthday and she was entitled to the higher pension.
The Court of Appeal dismissed an appeal from the Trust.

Comment

Employers should ensure that notice provisions are unambiguous. If notice is being served on an employee whose contract does not have an express provision dealing with when notice is deemed to be served, it will have to take steps to ensure the notice is received personally by the employee. The most practical way to avoid conflict would be to tell the employee in person and confirm in writing.

If you would like to speak to us about notice periods or drafting contracts of employment, please feel free to email us or contact us on 0191 282 2880 for a no obligation chat.

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