Termination of Employment

Dismissal notice period starts when employee reads notice

The important question of when a notice period begins to run, when an employee is dismissed with written notice being posted to her home address, was answered by the Supreme Court in Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood [2018] UKSC 22. The three competing options were:

• when the letter would have been delivered in the ordinary course of post
• when it was in fact delivered to that address, or
• when the letter comes to the attention of the employee and he has either read it or had a reasonable opportunity to do so

The Supreme held that, in the absence of an express contractual provision, when an employer sends notice of dismissal to an employee, the notice period starts to run when the employee, having received it, has either read it or had a reasonable opportunity to do so.

The Supreme Court found that this approach, which had been established by the EAT in Brown v Southall and Knight [1980] IRLR 130 and followed by the EAT ever since — was correct for several reasons, including that:

• the survey of non-employment cases did not suggest that the common law rule had been as clear and universal as the Trust suggested. Receipt in some form or other had always been required, and arguably by a person authorised to receive it
• the EAT had been consistent in its approach to notices given to employers since 1980. The EAT was an expert tribunal which should be taken to be familiar with employment practices, as well as the general merits in employment cases
• the contract at issue in the present case had, of course, been concluded when those cases had been thought to represent the general law
• there was no reason to believe that that approach had caused any real difficulties in practice. For example, if large numbers of employees were being dismissed at the same time, the employer could arrange matters so that all the notices expired on the same day, even if they were received on different days
• if an employer did consider that that implied term would cause problems, it was always open to the employer to make express provision in the contract, both as to the methods of giving notice and as to the time at which such notices were (rebuttably or irrebuttably) deemed to be received. Statute laid down the minimum periods which had to be given but not the methods
• it was very important for both the employer and the employee to know whether or not the employee still had a job. That meant that the employee needed to know whether and when he had been summarily dismissed or dismissed with immediate effect by a payment in lieu of notice. That consideration was not quite as powerful in dismissals on notice, but the rule should be the same for both

The implications of the decision are that if existing employment contracts are silent on the issue of when notice starts to run, the practice of just sending a letter serving notice of dismissal may be viewed as too uncertain. There could, therefore, be a shifting of culture and human resources practice. Employers may decide to provide longer notice than required (to ensure the set ‘end date’ does not move) or give notice face-to-face (with a letter provided at the meeting if the contract).

As the implied term also includes the option for the notice period to run from the date when the employee had a reasonable opportunity of reading it (if earlier than when actually read), then in order to ensure this date is as early as possible the notice of dismissal could also be provided by email (with read receipt activated) or via social media.

For further information, please contact our specialist Employment Law Solicitors on 0207 956 8699 or info@rllaw.co.uk.

Source: LexisNexis