Contractual notice only starts when the employee knows they are being dismissed
Each contract of employment should contain a notice period within the main terms and conditions of employment. Following recent case law, in order to prevent potential financial implications, employers may now want to consider including an express clause in their contracts of employment to specifically state when and how the notice may take effect.
In the case of Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood , the issue considered in the Court of Appeal was when the notice of termination of a contract of employment becomes effective.
In this case, Mrs Haywood’s contract of employment stated her minimum notice period as 12 weeks but did not state how the notice should be given. Mrs Haywood’s notice of termination was written in a letter and sent to Mrs Haywood’s home address, by way of recorded delivery on the 20th April 2011. Mrs Haywood was away on holiday at the time and did not read the letter until she returned from holiday on the 27th April 2011.
If the date on which the 12-week notice period began on the 27th April 2011, then it would have ended on the 20th July 2011, which was Mrs Haywood’s 50th birthday and this meant that she would then be entitled to claim an early retirement pension.
The High Court and the Court of Appeal upheld Mrs Haywood’s case, deciding that the notice period commenced on the 27th April 2011 as there was not an express contractual provision in the contract of employment and therefore, the notice did not take effect until the employee had read or had a reasonable opportunity to have read the notice letter.
This case makes clear that you cannot assume written notice is received for it to be effective, this can have particular challenges for employees who have become uncontactable, but such circumstances are relatively rare.
It is important to plan dismissals carefully and take into account when people may be away. If a particular date or timescale is important to dismissal, an employee may sensibly plan to be hard to contact.