The Supreme Court has confirmed in Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood that where an employee’s contract of employment is silent on the issue, an employee’s written notice of termination will take effect when the employee has read or has had a reasonable opportunity to read the notice.
In most contracts of employment a provision will outline how much notice is required and may also provide how notice should be given and when it is deemed to have been received. Where a contract of employment is silent on this, and the issue of notice comes into dispute between the parties, a term will need to be implied into the contract of employment.
The employee (“H”) was employed by the various bodies within the employer (the “Trust”) from 2008. On April 2011, H was transferred to another organisation within the Trust. Shortly after this transfer the Trust identified this role as redundant. The Trust and H discussed possible redundancy on 13 April 2011 and H informed the Trust that she would be away on holiday from mid-April, returning on 27 April 2011. H asked for the Trust to await her return before making a decision. The Trust ignored this request and issued a written notice of termination of employment on the ground of redundancy on 20 April 2011.
The Trust’s pension scheme provided that where a member’s employment is terminated by reason of redundancy on or after their 50th birthday (in this case H’s 50th birthday was 20 July 2011), they are entitled to claim an enhanced early retirement pension. If the notice was given on or after 27 April 2011 the notice period of 12 weeks would expire on or after H’s 50th birthday, whereas if the notice was given before this date the notice period would expire before H’s 50th birthday and H would not be entitled to the early retirement pension. H returned from holiday in the early hours of 27 April 2011 and read the letter later that day.
The Trust argued that the notice was given when the dismissal letter was delivered to the employee’s address, whereas H argued that the notice was given when the letter came to her attention and she had a reasonable opportunity to read it.
The Supreme Court held that the notice was given on 27 April 2011 as it was on this date that “the letter came to the attention of [H] and she had a reasonable opportunity of reading it”. H was therefore entitled to the early retirement pension.