Notice to terminate: Do you know when a notice period starts to run if sent by e-mail or post?
In the recent case of Newcastle upon Tyne NHS Foundation Trust v Haywood, the Court of Appeal (the Court) set out guidance on when exactly the notice period starts to run after it has been sent to an employee by e-mail and post.
What are the rules?
Notice is not effective unless it is actually given and effectively communicated to the employee, clearly indicating the date on which the contract is to come to an end. The usual rule is to discount the day on which it is given so that it starts running the following day: for example, if an employer gives a week’s notice on Monday 1st, it will expire on Monday 8th, rather than Sunday 7th. Likewise, a month’s notice will run from 5th April to 5th May, rather than to 4th May. Of course, there is the issue of irregular days in a month, so that one month is a day shorter than the other (and in case of February, 3 days shorter) but the correct application of the rule is to disregard the number of the days a month has and simply pick the corresponding day in the relevant month. So, to illustrate: if a month’s notice is given on 31st January, notice will expire on 28th February (29th February in a leap year).
Why was there a dispute in this case?
The employee, Mrs Haywood, was told that she was at risk of redundancy on 13th April 2011, following which she was absent from work due to stress-related sick leave. During her sick leave, she went on a pre-planned holiday, which had been approved by her employer. Her employer selected her for redundancy and sent her notice of dismissal on 20th April 2011 both by recorded delivery and e-mail. Her notice period was 12 weeks. Mrs Haywood did not see either notice until she returned from her holiday on 27th April 2011.
So when was notice served? Was notice served when it was posted by her employer; when it arrived at her home; or when she returned from holiday and actually read it? This was of particular importance in this case because Mrs Haywood turned 50 on 20th July 2011 and if her employment ended on or after this date, she would be entitled to a significantly enhanced pension. In short: if notice started to run when the letter was sent, it would end when she was still 49. However, if notice started to run when the letter was read, it would expire once she had reached the age of 50.
The Court decided that notice was only effective when Mrs Haywood had actually read it. This meant that she had attained the age of 50 and was entitled to the additional pension sum at a substantial cost to her employer.
This case illustrates that in spite of using two methods of service to ensure that notice had been properly delivered, importantly a notice period will not start to run until the employee is in fact aware that they are being dismissed.
To avoid such complications in your business you should:
- Where possible, hand the notice of dismissal in person.
- Ensure your contracts of employment specify that notice will be deemed to have been received a certain amount of time after it has been posted: e.g. two business days after posting.
- If sending by e-mail or post (including registered post), follow it up by a phone call to check the employee has received it.
- If the employee is on sickness absence, check the holiday calendar to ensure that the employee is (or should be) at home to receive post.
- Always make sure it is sent to the correct postal / email address.