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So, you have finally agreed to terminate the employee on long term sick.  You draft and then post the letter giving notice safe in the knowledge that posting a letter by ordinary post is deemed served.  Job done: notice has been served by the employer?

Recent case law [Haywood v Newcastle upon Tyne NHS Foundation Trust [2017] EWCA Civ 153] has confirmed that this is not always so.

Here are the facts

The employee [respondent] was employed as an associate director of Business Development by Newcastle Primary Care NHS Trust (“PCT”) from 1 November 2008 to July 2011. Newcastle and North Tyneside Primary Care Trusts had a joint board, of which Mrs Haywood was a member. Her role was business development for community services in both Newcastle and North Tyneside Primary Care Trusts which had a joint budget of £80m. The value of the business finally transferred was £54m. Although she had much nursing experience, hers was the only non-clinical Band. She was paid in excess of £80K per annum.

“While the employee was on holiday abroad her employer sent her a letter, by recorded delivery on 20 April 2011, notifying her that it was terminating her employment by reason of redundancy, with 12 weeks’ notice, in accordance with her contract of employment, terminating on 15 July. An attempted delivery card was left at the employee’s address on 21 April and a relative collected the recorded delivery letter from the sorting office on 26 April leaving it at the employee’s address. The employee did not read the letter until 27 April upon her return from holiday. At issue was whether she had received 12 weeks’ notice of dismissal before her 50th birthday on 20 July and therefore would receive a lower pension than she would have done if the notice period had expired on or after her 50th birthday. The judge declared that the employee was employed up to and including 20 July 2011, concluding that notice had only been given once the employee had actually read the letter of dismissal on 27 April so that the contents were communicated to her.”  The employer appealed.

The appeal was dismissed (Lewison LJ dissenting). “A notice had to be received even if sent by post. The employee did not receive notice of termination of her contract with the employer until 27 April and therefore the notice period did not expire before her 50th birthday. (Per Proudman J) The contents of the letter had to be actually communicated to the employee before it took effect.

Case law established that there was a requirement that employees needed to know where they stood, that the date of notice carried some importance and that there was a general requirement that all notices of all kinds in employment contracts needed to be communicated and therefore there was an implied term in an employment contract that notice of dismissal should be communicated to the employee in order for it to be effective. (Per Arden LJ) There was no implied term in the present case that the employer should have communicated notice of termination to the employee. A term that notice could be given by post was implied into the contract. However, a term as to when that notice was effective could not be implied but rather was governed by the general law. When the notice was sent by post to be effective it still had to be received and even when it was physically delivered to a person’s home, it was not necessarily received.

Comment

‘The law presumes unless the contrary was shown that a party to whom notice was addressed would have received it the next working day plus one following posting. But this presumption gives rise to a rebuttable presumption of receipt.’ That is, the employee can argue that they did not receive the letter and this must be then determined by the court.

Citation: [2017] EWCA Civ 153, [2017] WLR(D) 206

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