Notification of notice
In the recent decision of Newcastle Upon Tyne NHS Foundation Trust v Haywood  EWCA Civ 153, the Court of Appeal ruled that where an employment contract does not deal with the issue of when notice is considered to have been given, the notice takes effect on actual receipt of the notice by the employee.
Ms Haywood, an associate director of Business Development, was entitled to a minimum notice period of 12 weeks under her contract of employment. After a merger of NHS bodies, Ms Haywood’s contract was transferred to Newcastle Upon Tyne NHS Foundation Trust (the “NHS Trust”) on 1 April 2011. Shortly after the merger, Ms Haywood was informed that she was at risk of redundancy and attended a meeting to discuss this on 13 April 2011.
Ms Haywood commenced a period of sick leave on 13 April 2011 and attributed this to stress induced by the meeting. Ms Haywood had a period of annual leave from 19 April to 27 April 2011 and after returning from annual leave she remained on sick leave until 20 May 2011.
The NHS Trust sent Ms Haywood three letters and an email on 20 April 2011 informing her of her redundancy. All communications stated that Ms Haywood’s contract was terminated with 12 weeks’ notice concluding on 15 July 2011 and placing Ms Haywood on garden leave from 21 April 2011 to 15 July 2011.
Ms Haywood did not receive and read the letters until 27 April 2011, when she returned from holiday. The email was also read on 27 April 2011, but importantly the email was sent to Ms Haywood’s husband and she had not given the NHS Trust the authority to communicate with him on her behalf.
The Judges had to consider the postal rule and whether posting the letter was enough in itself to constitute communication to Ms Haywood, or whether the notice had to have been actually received at Ms Haywood’s home or whether the letters and email had to have been read by Ms Haywood to constitute delivery.
Crucially to the case, Ms Haywood’s 50th birthday was on 20 July 2011 and so the date of delivery of notice was central to the question of whether or not Ms Haywood was entitled to a more generous pension depending on whether the 12 weeks’ notice period commenced on 21 April 2011 or 27 April 2011.
The Court of Appeal considered the general principles of contractual law and the Employment Rights Act 1998 and, despite disagreeing amongst themselves as to the reasoning why, the majority in the Court of Appeal held that contractual notice of termination was given on the date Ms Haywood actually received the notice rather than on delivery or any deemed date of receipt of the notice. Accordingly Ms Haywood received notice on 27 April 2011 and her redundancy took effect after her 50th birthday, entitling her to a more generous pension.
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