Perhaps the answer should be straightforward. In usual circumstances, there is no dispute when dismissal takes effect – when it is communicated to an employee. That is usually in person, in a disciplinary hearing, or a non-renewal of a contract or the early termination of a probationary period. Where there is a face to face conversation – notice takes place on that communication.
In circumstances where this does not occur – disputes can arise as to when notice of dismissal has been given – so for a notice of dismissal posted to an employee (or emailed) – does notice take place:
- On the date when the letter or email would usually have been delivered in the ordinary course of post (say 2 days later);
- On the date when it was in fact delivered to that address (or email account); or
- On the date when the employee actually reads it (or could reasonably read it – if they deliberately choose not to).
The Supreme Court had this tricky situation to consider Newcastle Upon Tyne NHS Foundation Trust v Haywood.
The employee in question, Ms Haywood, was at risk of redundancy. Her redundancy and pension payments would increase (significantly) if she remained employed on 20 July 2011 and she was entitled to 12 weeks’ notice. Therefore, if notice was served on or after 27 April 2011 she would be entitled to the higher payments.
Mrs Haywood went on holiday on 19 April 2011. The Trust sent her notice of termination by post (and recorded delivery) on 20 April 2011. The courts accepted Mrs Haywood’s evidence that she read the letter on her return from holiday on 27 April 2011.
If notice was triggered before 27 April, she would receive the lower payments, if it was only triggered on 27 April (when she opened the letter and read it) then she would be entitled to the higher payments.
The Supreme Court held (but only by a margin of 3-2) that they would not interfere with longstanding caselaw from the EAT that notice is only effective when it is actually communicated to the employee (or if they have had a reasonable opportunity to have read it). In this case, Mrs Haywood was deemed to have been given notice only on her return from holiday, when she actually read the letter (on 27 April 2011) and therefore she was entitled to the higher payments.
The main takeaway from this case (which has upheld the previously understood position) is where notice needs to be triggered by a certain date, then it must be actually communicated to the employee by that date – ideally in person, but if not, then by phone or by ensuring that a letter is hand delivered to an employee (to give them the opportunity to read it) otherwise there is a risk that it will not be effective until they actually open the letter or email.
If you need any help with dismissals please get in touch with one of our team on 01924 827869.