The Supreme Court held that, unless the contract says otherwise, written notice of dismissal posted to an employee’s home takes effect only when the employee reads it or has a reasonable opportunity to do so. Mrs Haywood read the recorded-delivery letter on 27 April 2011 after returning from holiday, so her 12 weeks’ notice expired on her 50th birthday and she remained entitled to an early retirement pension. The employer’s appeal was dismissed by a majority.
Mrs Haywood had long continuous service in the NHS. Her employment transferred to the Trust on 1 April 2011 on the same terms. Those terms required 12 weeks’ notice of termination unless a different period was agreed. Shortly after the transfer the Trust identified her post as redundant. Both parties knew that if the employment ended by redundancy on or after her 50th birthday on 20 July 2011 she could claim a non-actuarially reduced early retirement pension; if it ended earlier she could not.
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Mrs Haywood had told the Trust about her planned absence. The relevant redundancy letter was sent by recorded delivery on 20 April 2011. A relative collected it from the sorting office on 26 April and left it at her home. She returned and read it the following morning.
The date was critical. Notice given on or after 27 April would expire on or after 20 July. Notice given before that date would expire earlier. She claimed that the 12 weeks began only when she read the letter, so that she was still employed on her birthday and entitled to the pension.
Decisions below
HHJ Raeside QC held that it was necessary to imply a term giving her a right actually to be informed of the dismissal and a reasonable opportunity to look at the letter. He declared that she was still employed on 20 July 2011 and made orders for payment of the pension, which were stayed pending appeal.
The Court of Appeal dismissed the Trust’s appeal by a majority. Proudman J held that the contents of the letter had to be communicated to the employee. Arden LJ held that the letter had to be received; any presumption of earlier receipt was rebutted by the finding that she received it only on 27 April. Lewison LJ dissented: notice is given when the letter arrives at the correct address, whether or not anyone is there to open it. A suggestion that the father-in-law had collected the letter as her agent was rejected; the Supreme Court agreed that, on the evidence, he had acted on his own initiative and was not her agent for receipt.
The implied term
The contract said nothing about how notice was to be given or when it took effect, so a term had to be implied. The Trust argued that a long-standing common-law rule, drawn mainly from landlord-and-tenant cases, meant that notice is given on delivery to the employee’s address. Mrs Haywood relied on a consistent line of Employment Appeal Tribunal authority that, absent an express term, an employer’s written notice takes effect only when the employee has received it and read it or had a reasonable opportunity of reading it.
Lady Hale, with whom Lord Wilson and Lady Black agreed, preferred the EAT approach. The older cases did not establish a clear universal rule that delivery to the address was always enough. Receipt in some form was required, and the cases could often be explained as service on someone authorised to receive the notice. Even statutory presumptions of delivery were generally rebuttable. The EAT, an expert tribunal, had applied the same approach since 1980 in a variety of contexts, not only when construing the statutory “effective date of termination”. That approach had not caused real practical difficulty. An employer wanting greater certainty can provide expressly for the method of notice and for when it is deemed received, or can give notice face to face. It is important that both parties know whether the employment is continuing, and the same rule should apply to summary dismissal and to dismissal on notice. The contract itself had been made when the EAT cases were understood to represent the general law.
Lady Black examined the eighteenth- and nineteenth-century authorities in detail and reached the same conclusion. They did not show that mere delivery of an ordinary civil notice to the recipient’s address was sufficient. In so far as a principle emerged, it turned on delivery to an agent—such as a servant or, in some cases, a family member—who would be expected to take in communications of that kind. Service on that agent was treated as service on the recipient. There was therefore no foundation for implying into an employment contract the term for which the Trust contended. The term to be implied should reflect the position taken by the EAT.
On the facts, the letter came to Mrs Haywood’s attention and she had a reasonable opportunity of reading it only on 27 April 2011.
The dissent
Lord Briggs, with whom Lord Lloyd-Jones agreed, would have allowed the appeal. He considered that for more than two centuries the common law has implied into relationship contracts terminable on notice a term that written notice is given when the document is duly delivered to the recipient’s home or business address, whether or not the recipient is present and whether or not it is later read. From that moment the risk of mishap or delay lies with the recipient. The employment cases concerned summary termination, or the statutory effective date of termination, and did not alter the common-law rule for termination on notice. Due delivery here occurred on 26 April.
Verdict: The Court dismissed the Trust’s appeal by three votes to two. Notice took effect on 27 April, so Mrs Haywood was still employed on her 50th birthday and qualified for the early retirement pension.
Source: Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood [2018] UKSC 22
