Notice of termination: are you sure your employee has been dismissed?

It is a common misconception amongst employers that notice of dismissal (or in cases where no notice is given, dismissal itself) will take effect on the date the employer writes to the employee to give them notice or inform them of the decision to dismiss.  A long line of case law from the Employment Appeal Tribunal (EAT) has established that this is not the case.  Where, as is often the case, there is no contractual provision dealing with communication of notice, notice (or dismissal) will take effect on the date on which this is communicated to the employee.  This means that, where an employer writes to an employee to give notice or inform them of their dismissal, it is only once the employee has personally taken delivery of the letter that the notice (or dismissal) will be deemed to have been received.
Until recently there had not been any authority on this point above EAT level.  In Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood the Supreme Court upheld the Court of Appeal’s decision that, where there are no contractual provisions to the contrary, notice is only deemed effective when read by the employee (or s/he has had a reasonable opportunity to read it).  In this particular case, Ms Haywood did not receive notice of redundancy until seven days after it was sent by the Trust to her home address.  This was because she was on holiday.  The date on which notice was effectively given, and therefore on which dismissal took effect, was of particular significance as it had a knock-on effect on the pension Ms Haywood was to receive.  This is one the Trust will be wishing it had got right – as it is, Ms Haywood is now entitled to a significantly higher pension than she would have received if notice had been effectively given when the Trust intended.
There are steps an employer can actively take to ensure notice, or dismissal, is effectively communicated where it is not possible for the employee to be informed of the decision face to face.  These include:

  • sending the letter by email and requesting a delivery and read receipt;
  • sending the letter by special delivery so that it has to be signed for; and
  • following up the letter with a phone call to ensure it has been received and, if not, inform the employee of the decision.

Even in apparently straightforward cases it is worth taking these extra steps.  Whilst the implications of not doing so may not be as significant as they were for the Trust in this particular case, it can avoid spending unnecessary time debating whether any subsequent unfair dismissal claim has been brought in time.

Victoria Albon

About Victoria Albon

Victoria has experience of advising on a wide range of contentious and non-contentious employment law issues. This includes significant experience of defending a wide range of claims in the employment tribunal, including claims for unfair dismissal and discrimination as well as claims for unlawful deductions of wages, holiday pay and under TUPE. Victoria regularly advises on non-contentious matters including the application of TUPE, handling collective redundancy consultations and changing terms and conditions.

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