What Happened in this Case?
In Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood [2018] UKSC 22, the trust told Ms Haywood, an associate director, she was at risk of redundancy. During a consultation
meeting about the redundancy exercise, she explained she would be on annual leave from 19 April to 3 May 2011 and would be abroad for some of this time.
On 20 April, the trust gave Ms Haywood written notice via a letter which it sent to her home address by recorded delivery. She was not there, so a delivery slip was left at her house. Her father-
in-law collected the letter on 26 April and left it at her house the same day. She returned from holiday on 27 April, when she read the letter.
The trust argued that the notice of dismissal took effect either when the letter was delivered to Ms Haywood’s address or a reasonable time after posting. However, the Supreme Court agreed with Ms Haywood that her notice only started to run when she actually had a chance to read the letter. If her 12-week notice period had commenced by 26 April, it would have finished before her 50th birthday on 20 July. However, because it started a day later, her dismissal date fell after she turned 50 and she was therefore entitled to a higher early retirement pension.
What Does this Decision Mean for You?
This case is important for 3 reasons:
- If you send an employee a dismissal letter by post and there is nothing in their contract that says otherwise, notice starts to run the day after the employee actually receives and has read the letter (or at least has had a reasonable opportunity to read it). The Supreme Court is the UK’s highest court, so this is the final word on the matter.
- It’s unusual for the date of dismissal to have such a serious impact on an employer. However, it you get this wrong, you may have to give an employee a bonus or other benefit that you had hoped to avoid. You will also have to continue paying the employee’s salary for longer than you planned.
- If you’re dismissing a group of employees, their employment may end on different dates, making the administration of a redundancy exercise more complicated.
5 Tips For Serving Notice
To minimise doubt about the date that notice starts, follow these 5 pointers:
- If at all possible, hand an employee their notice in person.
- When you dismiss an employee, you must hold a redundancy consultation or a disciplinary or capability hearing. At that meeting, check you have the employee’s correct address and phone details.
- If the employee is absent from work and the date of dismissal is important, try to speak to them on the phone and give them their notice verbally. Make a note of the date, time and details of the conversation so you have a clear paper trail. To avoid ambiguity, check when the employee will be at home and follow up your call with written notice and send this by recorded delivery.
- If you’re having difficulty getting hold of an employee, you may wish to try other means of contact. However, be aware that these can leave room for doubt. In the Haywood case, the trust also emailed Ms Haywood’s husband but the email remained unopened. In any case, the court ruled that she had not given permission to send communications to that address, so the emailed notice was invalid. Phone or recorded mail are the most reliable options in the first instance.
- Particularly when you hire senior or highly remunerated personnel, include an express provision in their contract stipulating when you will consider the employee to have received notice (i.e. a certain number of days after posting).