Giving notice by post – what is the date of dismissal?

23 June 2017

The date of dismissal of an employee can be very important as it can have repercussions in relation to contractual rights and the date at which Tribunal proceedings need to be lodged. A recent case considered by the Court of Appeal has stated that a notice of termination takes effect when the employee has personally taken delivery of the letter containing the notice.

Giving notice by post – what is the date of dismissal?

Ms Haywood was an Associate Director of Business Development at Newcastle Upon Tyne NHS Foundation Trust.  She was notified that her role was at risk of redundancy following a merger of NHS bodies.  During the process she went on a period of pre-approved annual leave during which time she was out of the country and she returned on 27 April 2011. 

Whilst on annual leave, on 20 April 2011 she was sent letters by recorded delivery and standard delivery as well as by e-mail which stating that her contract of employment was terminated with 12 weeks’ notice to expire on 15 July 2011.  The recorded delivery letter was not delivered on 21 April 2011 but a delivery slip was left at the house and the employee’s father-in-law collected the letter and left it at her house on 26 April 2011.  The recorded delivery was opened and read by the employee on 27 April 2011 and the e-mail was accessed after that letter had been read.

On the facts of this case the date of termination was of vital importance as the employee was entitled to an enhanced or reduced pension depending on the date that she was dismissed.  That issue was dependent on whether her employment ended before she turned 50.  The enhanced pension was only payable if notice was effected on the employee on or after 27 April 2011.  Accordingly if the notice of termination expired prior to that date she was entitled to receive a lower pension than if her employment terminated after that date.  Notice would have been needed to have been given by 26 April 2011 in order for the lower pension to be payable.  She was not paid the enhanced pension and she issued High Court proceedings claiming entitlement to an enhanced pension.

The Court of Appeal agreed with the decision of the High Court that in the absence of an express contractual term specifying when a notice of termination is effective, the notice takes effect from the date it is received by the employee.  This required the employee to have personally taken delivery of the letter, even if it had not been read.  In light of this, Ms Haywood only received the letter on 27 April 2011, notice expired on her 50th birthday meaning that she was entitled to the higher pension. 

This case turned on the facts of the employee’s contractual rights under her contract of employment based on her right to receive a pension and did not consider what was her effective date of termination for the purposes of her statutory rights in employment law.  What is clear is that had there been an appropriate term in the employment contract as to deal with the question of when notice is deemed to take effect the decision may well have been different. 

Employers should always take professional legal advice in advance in dealing with employment matters to avoid costly and time consuming litigation.

Maxine Orr is a Partner specialising in Employment Law in Worthingtons Commercial Solicitors Belfast.

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