When is Notice of Termination Effective?
Notice of termination is only effective when an employee personally takes delivery of the letter containing it.
Notice of termination is effective when an employee personally takes delivery of the letter containing it. They do not have to have read the letter. Where an employee was on holiday when the letter was delivered, notice was not effective until she saw the letter. It was only then that she had personally taken delivery of it.
In Newcastle upon Tyne NHS Foundation Trust v Haywood, the Trust sent a letter to Ms Haywood purporting to terminate her employment with 12 weeks' notice on 20 April 2011. Ms Haywood was out of the country on holiday. The Trust sent the letter by recorded delivery. Ms Haywood’s father-in-law collected the letter from the Post Office on 26 April and left it at her home the same day. Ms Haywood arrived back from holiday in the early hours of 27 April and did not read the letter until about 8.30am on 27 April.
The court had to decide whether Ms Haywood had received 12 weeks’ notice of dismissal before her 50th birthday on 20 July 2011 (in which case she would receive a lower pension). Notice of termination needed to have been given by 26 April in order for the lower pension to be payable.
The High Court ruled that in the absence of an express term in the contract dealing with the situation, notice was only effective once Ms Haywood had actually read the letter. This was on 27 April when she returned from holiday. She was therefore entitled to the higher pension.
The Trust appealed to the Court of Appeal.
The Court of Appeal did not agree that notice was only effective once Ms Haywood had read the letter. It considered that notice takes effect from the date when the employee receives it, in the sense of them having personally taken delivery of the letter containing it. In this case, that was not until 8.30 am on 27 April when Ms Haywood actually saw the letter. She was therefore entitled to the higher pension.
Where, as in this case, an employer needs to ensure that employment will terminate by a particular date, it is best to hand the letter containing the notice of termination to the employee personally. Some employment contracts contain provisions which specify when notice is deemed to have been received, so it is always worth checking the contract as those provisions will be effective.
Note, however, that where dismissal is without notice and an employment tribunal is considering the effective date of termination of an employee’s employment (EDT), termination is only effective once the employee has read the letter (unless they have deliberately avoided doing so). The EDT is relevant when determining whether an employee has the two years’ service needed to bring an unfair dismissal claim.
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