Served when read

The Supreme Court handed down its decision in Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood. The point of dispute was a rather technical matter and what many would have believed was a settled point: when an employer gives notice to its employee, when does the notice period start to run from? Is it when the notice is sent? Or perhaps is it when the notice is delivered or presumed to be delivered? Or could it be when the employee actually has a chance to read it?

In this case the starting point of the notice, notice of redundancy dismissal as it was, mattered as depending on when the notice expired, and the employment ended, the employee would or would not have been entitled to certain occupational pension benefits. When the employment termination notice was sent the employee was away on holiday and did not have a chance to read the letter until she returned a week later.

Unsurprisingly, the Supreme Court by a 3-2 majority decided to follow the case law established by the Employment Appeal Tribunal. The relevant point in time is when the employee read the notice. Such is the implied term of each employment contract.

Lady Hale then clarified that an employment contract may have express provisions deviating from the implied term. If the employer would like the notice period to start when the notice is delivered, for example, service of notice is deemed to take effect on the second business day after posting, the employment contract would need to say so explicitly.

Another alternative would be to announce dismissal and give notice in a meeting, confirming with a letter.

Lawgistics Members can get advice on employment issues by contacting the legal team.

Authors: Kiril Moskovchuk

Published: 14 Jun 2018


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