You're fired – but when?
When a business dismisses an employee, both parties need to know when the dismissal takes effect. The precise date may have a major impact on pay and benefits, and also affects the deadline for the employee to lodge any Tribunal claim. Determining the date is straightforward when the employee is dismissed in person, but can be tricky when written notice is sent to the employee, particularly if there is a dispute about when it was received or read. The Supreme Court has recently confirmed that, in the absence of an express contractual term setting out when notice is effective, what is important is when the notice is actually read by the employee, not when it is sent by the employer.
In Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood, Ms Haywood was on holiday when the Trust wrote to confirm her redundancy, and so did not receive it until 7 days after it was posted, even though it was sent by recorded delivery. Ms Haywood’s contract of employment did not stipulate when notice would be deemed to be received. If notice expired after Ms Haywood's 50th birthday (which it would have if it was deemed received on the day she read the letter), she would be entitled to a significantly higher pension.
The Court held that, in the absence of an express contractual term stating otherwise, notice of termination of employment sent by post only takes effect when the notice has come to the attention of the employee and he or she has had a reasonable opportunity to read it. However, the Court emphasised that there is nothing to prevent parties including an express term setting out when notice takes effect.
Employers should ensure that their staff contracts include terms dealing with the mechanics of giving notice and specifying when notice is deemed to be received (and should ensure that they comply with those terms when giving notice). They should also take the following practical steps to avoid uncertainty about when a dismissal takes effect:
- Where possible, issue notice of termination by hand.
- Ensure that all employee addresses and contact details are up-to-date.
- Where notice is to be posted, send the letter by special delivery, so that the delivery can be tracked and signed for.
- Follow up with a copy of the notice by email, requesting delivery and read receipts.
If you would like more information on how the points raised could impact you, please contact Head of Employment, Jane Amphlett.