When is notice in an Employment Contract deemed to be given?

15 May 2017

As an employer do you know if you give notice of termination when is that deemed to have effect?

In a recent case namely, Newcastle Upon Tyne NHS Foundation Trust and Haywood the question of when notice of termination takes effect was decided.

The facts of the case are this. Ms Haywood was going to turn 50 on 20th July 2011. In April that year, she was told that she was at risk of redundancy. The reason age was an issue was that if redundancy occurred after her 50th birthday, she would be entitled to a considerably more generous pension than being made redundant beforehand.

There was no express term (which is imperative) as to how notice was deemed to be given. Under her contract, she was entitled to 12 weeks’ notice.

Ms Haywood went on holiday. Her employer sent notice of termination by recorded delivery, ordinary post and an email to her husband’s email address on 20th April. Ms Haywood was already on holiday at that time and was returning on 27th April. She read the notice upon her return from holiday.

The Court of Majority (by a majority) held that contractual notice of termination was given on the actual receipt rather than on delivery or any deemed date of receipt.

This is very unfortunate (depending on who you are acting for) for Newcastle Upon Tyne NHS Foundation Trust. That meant that she received notice on 27th April and therefore termination took place after her 50th birthday which entitled her to the considerably more generous pension.

Therefore, the key is that as an employer you need to look at your contracts of employment and check whether or not you have express clauses setting out when notice is deemed to be given whether you send that notice by fax, email or post.

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