Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

The Supreme Court handed down its long-awaited landmark decision in April this year, in the appeal of Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood [2018] UKSC 22, ruling that notice of termination takes effect neither when the termination letter is posted by the employer, nor when it is put through the employee’s front door – but when the employee actually reads it.

The Supreme Court found in favour of Sandi Haywood, an NHS worker whose managers sent her notification that her role was redundant while she was on holiday. It centred on the timing of her dismissal and whether the official notice fell before or after her 50th birthday.

The Supreme Court by a majority of three to two (Lord Lloyd-Jones and Lord Briggs dissenting) dismissed the Trust’’s appeal. Lady Hale, with whom Lord Wilson and Lady Black agreed, analysing the common law decisions reached in civil courts as well as the line of employment law cases decided since 1980, gave the main judgment and Lady Black added a further analysis of the case-law.

While the case dealt with an employment issue, the case was initially heard in the High Court as a breach of contract claim. Lady Hale, current President of the Supreme Court,  expressed surprise in her judgement that, given the number of people that this problem could potentially affect, the higher courts had not seen such a case before now.

The factual background of Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood

Mrs Haywood (the Respondent), was dismissed by reason of redundancy by her employer, the NHS Trust (the Appellant). Her contract of employment provided for termination of a minimum period of notice of 12 weeks but did not explicitly state how such notice should be given or when it should take effect.

On 20 April 2011, the Appellant sent a letter giving written notice of termination by recorded delivery to the Respondent’s home address. The Appellant was aware that she was away on holiday. The letter was collected from the local sorting office by the Respondent’s father-in-law on 26 April 2011 and left by him in her house that day. She returned from holiday abroad on 27 April 2011 and read the letter.

On the unusual facts of this case, the date on which the 12 week notice period started to run was highly material. If it commenced on 27 April 2011, it expired on 20 July 2011, the date of the Respondent’s 50th birthday, and she would be entitled to claim a non-actuarially reduced early retirement pension.

The decision of the Supreme Court

In the absence of an express contractual provision, the court had to determine what the implied contractual term should be in terms of when notice of termination of employment should take effect.

The Appellant argued that there was a common law rule, principally derived from landlord and tenant cases, which provided that notice was given when the letter was delivered to its address. The Respondent relied on the approach of the Employment Appeal Tribunal (EAT) in employment cases to support her case that notice only took effect when it had actually been received by the employee and the employee had either read or had a reasonable opportunity of reading it.

Having reviewed the cases relied on by the parties, the majority of the Supreme Court held that the approach which had been taken by the EAT was correct because:

  • The common law rule in non-employment cases was not as clear and universal as the Appellant suggested and could not necessarily be relied on in this case.
  • The EAT was an expert tribunal familiar with employment practices. Its previous decisions had favoured the approach that, due to the personal nature of the employment contract, and in the absence of an express provision in that contract, the employee must personally see the letter of dismissal.
  • An employer could either make express alternative provision in the contract or ensure notice of termination was received in sufficient time to allow the employment to terminate on a specified day. In addition in this case, the Appellant was fully aware that the Respondent was on holiday and would not be able to open the letter until she returned.
  • Lady Black reviewed the common law cases in further detail to support the finding that that these cases did not have the effect contended for by the Appellant that delivery to the recipient’s agent, who might be a household servant, professional agent or family member (in this case the Respondent’s father in law), amounted to receiving notice on her behalf.
  • Lord Briggs, dissenting, found that the common law cases had long established a rule that embedded an implied term into contracts of employment determinable on notice. Such contracts were only a sub-species of relationship contracts. The rule for relationship contracts was that written notice of termination was given when the document containing it was duly delivered by hand or post to the address of the intended recipient, regardless of whether either the intended recipient or his agent was there to receive it. The rule had a sensible and even-handed policy objective behind it, creating certainty for both parties and representing a fair allocation of risk

Our solicitors’ comments on Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood

Caroline Lewis, a specialist employment solicitor at Redmans, commented on the case: “The ruling is important for employers and employees as the termination date can be decisive in determining an employee’s entitlement to a bonus or other contractual payment, insurance or employee benefits, or the statutory right to claim unfair dismissal and/or redundancy pay, and increased pension rights. While employers may be concerned that this decision creates uncertainty about when notice has taken effect, there are certain practical steps they can take, including drafting their contracts of employment to expressly state when notice is deemed to take effect (e.g. two days after the posting of a letter)”.

The full decision can be found here

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

    Your first name (required)

    Your last name (required)

    Your email (required)

    Your telephone number (required)

    Brief details of your enquiry

    Testimonials

    4.80 Average

    330 Reviews

    Arabella B

    I am so grateful to Caroline Lewis at Redmans Solicitor’s for helping me with my Unfair Dismissal Case. I was seriously impressed how easy Redmans made the whole case, and am very happy with my Settlement. I have recommended your firm to at least 5 people in the last 3 months.. Thank you Caroline and everyone at Redmans. You are Brilliant .

    Posted 7 hours ago

    Anonymous

    Highly professional and efficient service.

    Posted 12 hours ago

    Tanya T

    I had the pleasure of Chris and Sacha’s experience with a work matter. They made me feel at ease with the process and explained everything thoroughly. Would happily recommend Redmans especially Chris and use them if needed I’m the future. Thank you!

    Posted 13 hours ago

    Anonymous

    I used the services of Redmans solicitors and was a quick outstanding service I engaged them in a settlement agreement after been made redundant extremely professional at all that was done and would definetly use them again

    Posted 14 hours ago

    Adrian A

    Spot on support, enough to get the matter at hand sorted. No beating around the bush, no nonsense - got the job done and we all moved on.

    Posted 14 hours ago

    Mark Q

    Five Stars I was most impressed by the attention, courtesy, speed and above all, professionalism in dealing with my Settlement Agreement. I would certainly have no problem in recommending this firm to anyone in need of their services.

    Posted 1 week ago

    Ade A

    I was surprisingly impressed by how Redmans Solicitors handle my case. From the moment I call them to the absolute end of my case, they always look after my best interest.

    Posted 1 week ago

    Malcolm P

    they were there when others were not

    Posted 2 weeks ago

    Anonymous

    Excellent service all the way through from start to finish. Really great support and guidance from the team, they secured the offer that I wanted. I can't recommend Redmans highly enough and will be sure to use their services again should the need arise.

    Posted 2 weeks ago

    Anonymous

    Efficient and quick service!

    Posted 1 month ago

    Karen B

    Quick response very helpful Issue raised dealt with very quickly

    Posted 1 month ago

    Carmen T

    Redmans give Great service and advice on reading contracts. They can explain all the solicitors jargon into words that you can understand. I received excellent service an I will use them again and again.

    Posted 1 month ago

    Anonymous

    Very grateful for Mel’s efforts in handling my case from start to finish which I would have found very stressful without it. She was very professional, friendly and we had a positive outcome. Highly recommend.

    Posted 1 month ago

    Nalin W

    Mel Chin was my Legal Executive when I engaged the services of Redmans Solicitors to help with a redundancy matter. She was incredibly approachable and professional from start to finish. Specially I have to mention regarding prompt reply to all my email queries, It was super quick. I would thoroughly recommend Mel Chin. Many Thanks

    Posted 2 months ago

    Anonymous

    I'd highly recommend Redmans Solicitors. Mel was very helpful and assisted me throughout my case.

    Posted 2 months ago

    Anonymous

    Sacha was very thorough and very helpful, with great advice on when to act and when to wait on my case.

    Posted 2 months ago

    Anonymous

    I have been very pleased with the support I got from Redmans Solicitors on my case with my employer. Caroline has always helped me to put things in perspective and showed me different scenarios ultimately to help me taking the right decision. She was very professional and always available when I needed, and at the same time also emphatic which I found also really important to establish a strong relationship. Will definitely recommend!

    Posted 2 months ago

    Anonymous

    Prompt and efficient response to my enquiries. Excellent negotiating skills with my employer which considerably improved the terms of my settlement agreement.

    Posted 2 months ago

    Anonymous

    Very quick and professional service , Rana was very helpful

    Posted 2 months ago

    James G

    Very professional, knowledgeable and kept me informed at every stage of my case. I would highly recommend Redmans.

    Posted 2 months ago

    Pravina P

    Chris was really good and help solve my issues with current company. I would recommend him to anyone.

    Posted 3 months ago