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Case law: Employers serving time-critical notices on employees need to check when they are deemed to be given

Employers sending time-critical notices to employees should ensure they know when the notice will be deemed to have been given, taking into account any express provisions in the employee's terms of employment or other applicable rules, following a Supreme Court ruling.

June 2018

This update was published in Legal Alert - June 2018

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

An employee was told she was at risk of redundancy. If she was made redundant on or after her 50th birthday (on 20 July 2011) her pension entitlement would be significantly higher than if she was made redundant earlier.

She was entitled to 12 weeks' notice, but her terms of employment did not expressly set out when any notices served on her were deemed to have been given.

The employee went on holiday from 19 April to 27 April, telling her employer she would be away. On 20 April, her employer sent notice of termination of her employment to her home address by ordinary post and by recorded delivery post (which was accepted by her neighbour in her absence), and by email to her husband's personal email address. She did not see any of these until she returned from holiday on 27 April.

Her employer argued that there was a common law rule (ie, a rule derived from previous court decisions) that notices were effective when delivered.

The Supreme Court disagreed: in the absence of any express provision in her terms of employment, she was deemed to have received it when she actually received and read it, or first had a reasonable opportunity to do so, which was on 27 April 2011. It pointed out that previous court decisions on which the employer relied were mainly concerned with notices served under landlord and tenant law, not employment law. Those cases that were not landlord and tenant cases involved service on a commercial organisation, not to a private home. This case could therefore be distinguished from those.

This means the notice period for termination of her employment did not expire until after her 50th birthday and she was entitled to a higher pension than if the Court had deemed her to have received it on 20 April.

The employer also argued that such a ruling would leave employers uncertain whether or not a notice had been served. However, the Court said it was open to employers to provide different rules in employees' contracts of employment, to give the notice in person, or send notices well in advance of the required date.

Operative date

  • Now

Recommendation

  • Employers sending time-critical notices to employees should ensure they know when the notice will be deemed to have been given, taking into account any express provisions in the employee's terms of employment – which are recommended if the employer requires certainty – or other applicable rules, and act accordingly

Case ref: Newcastle-upon-Tyne NHS Foundation Trust v Haywood [2018] UKSC 22

Please note: An article published in the May 2017 edition of Legal Alert covered this case at an earlier stage in the legal process.

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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