03 April 2017
In the case of 'Newcastle Upon Tyne NHS Foundation Trust v Haywood' the Claimant was employed as associate director from 2008 to 2011. Section 1 of her written statement provided that the minimum notice period of termination of employment from either party was 12 weeks. Following a merger of NHS bodies, the Claimant’s contract was transferred to the NHS Trust.
The Claimant was then advised that she was at risk of redundancy and was subsequently dismissed by reason of redundancy. The Trust sent the Claimant notice of dismissal by recorded delivery letter.
In order to assess the Claimant’s entitlement to her pension, the Court had to decide precisely when her employment ended. The trust argued her notice period expired before her 50th birthday. The Claimant maintained her notice period expired after her 50th birthday.
The question was whether when dismissal was communicated: was it when the dismissal letter was posted (and deemed to be received) or was it when the employee had actually read it?
The court held that as a general rule legal certainty should prevail. The date of notice was important and so there was a general requirement that all notices of all kinds in employment contracts needed to be communicated. A deeming provision did not dispense with the need to give notice that the employment was being terminated. Certainty was paramount and the contents of a letter had to be communicated to an employee. Simply sending the letter without the letter having been received would not have been enough.
It is required that the dismissal letter had to be communicated to the Claimant before it took effect. This meant that on the facts the Claimant was entitled to a higher pension (since her employment had in fact ended after her 50th birthday).
This case is a reminder of the importance of establishing actual receipt of notice of termination of a contract of employment which in some cases can result in significant differences in cash terms depending upon the actual date. Beware!
See http://www.bailii.org/ew/cases/EWCA/Civ/2017/153.html
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