29th Jun 2018

At what point is notice served?

The recent Supreme Court ruling on an employment case - Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood [2018] - has decided an important issue about the service of notice.

The ruling centred on when notice is regarded as being served. Is it served when it is delivered to the recipient’s home or is the notice served only when read by the recipient?

A statutory or contractual provision will sometimes set out when notice is served. For example, a lease may set out the notice procedure when for instance the Landlord is serving a notice on the Tenant terminating the lease. In this case, however, the employment contract was silent as to when notice is deemed served.

The Facts

Mrs Haywood was employed by the NHS Foundation Trust. Within her employment contract, she was entitled to a 12 week notice period. At the beginning of April 2011, Mrs Haywood was notified as being at risk of redundancy.

The Trust later sent notice confirming her redundancy. Notice was sent by three different methods (1) ordinary post sent on the 20 April (2) recorded delivery and (3) email to her husband. The notice stated that Mrs Haywood’s employment would end on 15 July 2011 (five days before her 50th birthday). The date when notice was deemed served was very important because if the end of the notice period was after her 50th birthday she was entitled to a substantially enhanced pension.

Significantly, Mrs Haywood was on holiday in Egypt between 19 and 27 April. The Trust were aware of this holiday, presumably having approved her annual leave. Mrs Haywood therefore did not read the notice terminating her employment until her return from holiday on 27 April 2011.

Mrs Haywood claimed that her 12 weeks’ notice did not begin until she received and read the letter on 27 April 2011 upon her return from holiday. She argued, therefore, she was entitled to the generous pension entitlement as her employment ended with the Trust when she was 50.

The Decision

The High Court ruled in favour of Mrs Haywood, as did the Court of Appeal. The Trust appealed to the Supreme Court.

In its arguments, the Trust relied on Landlord and Tenant case law dating back to the 18th century. In a number of these cases, notice was held to have been served by the Landlord when delivered to the Tenant’s home, rather than when it came to the Tenant’s attention.

The Supreme Court rejected these arguments, ruling that notice of termination starts to run only when the individual receives it. Mrs Haywood was accordingly given notice on 27 April, when she read the letter. Subsequently she was entitled to the enhanced pension benefits as the notice period ended when she was aged 50. 

This case makes clear that you cannot assume written notice is received for it to be effective. This can have particular challenges for employees who have become uncontactable or argue they were away when documents have been served. If a date or timescale is particularly important, a shrewd employee may make themselves hard to contact.

Steps to take

Practical solutions to avoid this could be to:

  1. Hand-deliver any letter to the recipient, afterwards writing a short statement of service.
  2. Include an express provision in the contract specifying when written notice is deemed to be received.

Chris Langford is a Trainee Solicitor within Berwins' commercial team. 

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