The Court of Appeal (CA) recently considered in Newcastle Upon Tyne NHS Foundation Trust v Haywood whether a contractual notice of termination takes effect on posting, delivery or communication of the contents of the notice, where there is no express term specifying when such notice is effective. In the vast majority of cases, schools will have contracts of employment in place for their staff which include an express term about the method of service of notice. This should be adhered to in order to ensure that notice has been correctly served. However, we have come across situations where no such term is in place!
The CA held, by a majority, that the notice of termination took effect from the date it was actually received by the employee in the sense of them having personally taken delivery of the letter containing it.
In April 2011, Ms Haywood was told she was at risk of redundancy. She was 50 on 20 July 2011. Redundancy after her 50th birthday would have entitled her to a considerably more generous pension than redundancy 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 by ordinary post and also by email to her husband’s email address. She read the notice on her return from holiday on 27 April.
Although the judges disagreed with each other about the reason why, the majority held that contractual notice of termination was given on actual receipt by Ms Heywood rather than on delivery or any deemed date of receipt i.e. the relevant date was when she actually saw and read the letter. Accordingly, as Ms Haywood had been on holiday and did not actually receive the notice until 27 April, this date as held to be the date of service of the notice and her termination date was therefore after her 50th birthday, entitling her to an enhanced pension. One of the comments made in the case was that purported service by email was not effective.
If a contract is silent on method of service, schools are encouraged to arrange for personal service i.e. handing the letter to the employee.
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