Deemed notice in employment contracts

By a 3/2 majority, the Supreme Court upheld the Court of Appeal’s decision...

…in Newcastle Upon Tyne NHS Foundation Trust v Haywood as to the effective date of termination in cases where the employment contract does not include a deeming provision.

The question of when notice took effect was of enormous importance to Sandi Haywood because the possible dates were either side of her fiftieth birthday. Had her twelve weeks’ notice of redundancy taken effect before her birthday, her pension entitlement would have been substantially less than had it taken effect after that date. Notice was in fact posted to her by the Trust on the actual date of her birthday, and received a week later on her return from her holiday in Egypt, being a day after her father-in-law had redeemed the recorded delivery slip at the local sorting office.

The question was whether notice was effective when it was sent, ordinarily delivered or actually received by the intended recipient.

The Supreme Court considered case law to the effect that notice was deemed effective on the date of Mrs Haywood’s actually receiving it, on her return from holiday, a week after her birthday. As Judge Eady QC had said in Sandles v Adecco UK ltd [2016] IRLR 941 “dismissal does have to be communicated”. This meant that she would be entitled to the higher pension allowance, a decision consistent with that in Gisda CYF v Barratt [2010] UKSC 41 which had been limited to the issue of summary dismissal, though less consistent with the landlord and tenant cases advanced by the Trust.

Doubtless employers will in future be vigilant than ever to ensure that there are adequate deeming provisions in employment contracts. Existing contracts may be capable of consensual variation, but there may yet be similar cases where recipients of such notices are, say, on holiday or otherwise incapacitated. All of this may in time become academic, with the use of read receipts in emails. In such cases it will clear to any sender whether an email has in fact been received and opened.


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