The Supreme Court recently gave important guidance on when contractual notice of dismissal delivered in writing comes into effect. It found that the notice period of an NHS employee who had been issued redundancy by mail while she was on holiday did not begin until she had an opportunity to read the letter, not when it arrived at her home. This long-awaited judgment reiterates why establishing a concrete dismissal date is such a critical aspect of this process and employers should now be reviewing how they can do this effectively.
The case began when Newcastle upon Tyne Hospitals NHS Foundation Trust served an employee, Sandi Haywood, with redundancy notice in writing. Haywood was overseas at the time and did not physically receive the letter until seven days after it had been sent to her via recorded delivery. The day after the Trust issued it a card was put through her door in her absence. Haywood’s father-in-law then collected the letter on her behalf five days later, but she did not physically read it until the day after when she returned home.
The Trust said her contract should have terminated 12 weeks after the letter was sent, or at least after it was picked up. However, Haywood claimed it should be 12 weeks from when the letter was read. If she was right, her notice period would mean that the contract would not have terminated prior to her 50th birthday and therefore she was entitled to significantly enhanced pension rights.
On these grounds, the court found in favour of Haywood, ruling that unless stated specifically otherwise in an employment contract, written notice only comes into effect when the recipient has had the opportunity to read it.
This means employers, as a first port of call, should consider building terms into their contracts to ensure a clear definition of when notice periods commence and the different methods that can be used to deliver it. This case does not stop employers from doing this, it just decides what happens when they do not.
There are also some basic best practice steps which employers can implement to ensure the exact date of contractual notice being served is certain to all parties, and that dismissals are ultimately handled effectively:
1 Think ahead and know where employees are going to be when planning dismissals. It’s essential to plan dismissals carefully and consider when employees may be away from work. If a date or timescale is very important to a dismissal, employers must remember to factor in how employees are going to be told and when the period of notice will end.
2 If possible, always serve notice in person. This case highlights the pitfalls of written notice and reiterates that it is always clearer and safer to give notice face-to-face, or at the very least verbally. This means there is no doubt for either party about when the employee has been given notice. It is also advisable to record both the date and time of any such conversation and log exactly what was said.
3 When serving notice in writing, post by special delivery. Employers cannot assume written notice has been received. If there is no other option than sending a letter, it must be posted via special delivery, so the employee has to sign for it. There will also be a tangible record of receipt, although of course not necessarily a record of when the employee has read it.
4 Follow up using every means available. Written notice should always be followed up with telephone calls and, if possible, an email, to obtain confirmation that it has been received.
5 Confirm and keep up-to-date employee contact information. It is essential to maintain up-to-date contact information for every employee and establish their preferred method of contact. It is also sensible, as part of dismissal proceedings or redundancy consultation, to ensure how and when employees can be notified of any decision and where written confirmation can be sent. Emails can often be the quickest way of notifying an employee, provided you know that the emails are being read and received.
Phil Allen is a partner and employment law specialist at Weightmans.
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