Newcastle Upon Tyne Hospitals NHS Foundation Trust v Haywood: SC 25 Apr 2018

Notice of dismissal begins when received by worker

The court was asked: ‘If an employee is dismissed on written notice posted to his home address, when does the notice period begin to run? Is it when the letter would have been delivered in the ordinary course of post? Or when it was in fact delivered to that address? Or when the letter comes to the attention of the employee and he has either read it or had a reasonable opportunity of doing so?’
Held: The Trust’s appeal failed Lloyd-Jones and Briggs JJSC dissenting). There was no express provision in the contract, and common law rules in contract provided no determinative guidance. The consistent approach of the EAT was correct: the notice period began when the oral or written communication came to the notice of the employee who read it or had a reasonable opportunity of doing so. The EAT was an expert tribunal as to industrial practice.
The approach consistently taken by the EAT is correct, for several reasons:
(1) The above survey of non-employment cases does not suggest that the common law rule was as clear and universal as the Trust suggests. Receipt in some form or other was always required, and arguably by a person authorised to receive it. In all the cases there was, or should have been, someone at the address to receive the letter and pass it on to the addressee. Even when statute intervened in the shape of the Interpretation Act, the presumption of receipt at the address was rebuttable. There are also passages to the effect that the notice must have been communicated or come to the mind of the addressee, albeit with some exceptions.
(2) The EAT has been consistent in its approach to notices given to employers since 1980. The EAT is an expert tribunal which must be taken to be familiar with employment practices, as well as the general merits in employment cases.
(3) This particular contract was, of course, concluded when those cases were thought to represent the general law.
(4) There is no reason to believe that that approach has caused any real difficulties in practice. For example, if large numbers of employees are being dismissed at the same time, the employer can arrange matters so that all the notices expire on the same day, even if they are received on different days.
(5) If an employer does consider that this implied term would cause problems, it is always open to the employer to make express provision in the contract, both as to the methods of giving notice and as to the time at which such notices are (rebuttably or irrebuttably) deemed to be received. Statute lays down the minimum periods which must be given but not the methods.
(6) For all the reasons given in Geys, it is very important for both the employer and the employee to know whether or not the employee still has a job. A great many things may depend upon it. This means that the employee needs to know whether and when he has been summarily dismissed or dismissed with immediate effect by a payment in lieu of notice (as was the case in Geys). This consideration is not quite as powerful in dismissals on notice, but the rule should be the same for both.

Lady Hale, President, Lord Wilson, Lady Black, Lord Lloyd-Jones, Lord Briggs
[2018] UKSC 22, [2018] 1 WLR 2073, [2018] ICR 882, [2018] 4 All ER 467, [2018] WLR(D) 265, [2018] IRLR 644, UKSC 2017/0074
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Video Summary, SC Video 2017 11 20 am, SC Video 2017 11 20 pm
England and Wales
CitedWalter v Haynes 6-Sep-1824
An action of assumpsit was brought upon a bill of exchange. A notice of dishonour had been posted in a letter addressed to ‘Mr Haynes, Bristol’. This was held not to be sufficient proof of notice.
Lord Abbott CJ implied that what was required . .
CitedGisda Cyf v Barratt SC 13-Oct-2010
The parties disputed the effective date of termination of the claimant’s employment. Was it the date on which the letter notifying her was sent, or was it on the day she received it. She had been dimissed without notice, and the date was the date on . .
Appeal fromNewcastle Upon Tyne NHS Foundation Trust v Haywood CA 17-Mar-2017
The Trust had sent to the respondent a letter terminating her employment. The parties disputed when the notice took effect.
Held: Proudman J held that ‘the contents of the letter had to be communicated to the employee’.
Arden LJ held . .
CitedSociete Generale, London Branch v Geys SC 19-Dec-2012
The claimant’s employment by the bank had been terminated. The parties disputed the sums due, and the date of the termination of the contract. The court was asked ‘Does a repudiation of a contract of employment by the employer which takes the form . .
CitedGriffiths v Smith 5-Mar-1790
Delivering a notice to quit to the tenant’s maidservant at his house (which was not the demised premises) was sufficient. Personal service was not necessary in every case, although it was in some. Kenyon CJ remarked that ‘in every case of the . .
CitedJones On The Demise of Griffiths v Marsh 21-Nov-1791
Where the tenant of an estate holden by the year has a dwelling-house at another place, the delivery of a notice to quit to his servant at the dwelling-house, is strong presumptive evidence that the master received the notice. . .
CitedDoe Dem Neville v Dunbar 12-Dec-1826
Two copies of the notice to quit were served at the defendant’s house, one on the servant and the other on a lady at the house. The defendant complained that this was not good enough.
Held: Abbott CJ had no doubt as to the sufficiency of a . .
CitedPapillon v Brunton 27-Apr-1860
A tenant served notice to quit by posting it to his landlord’s agent. The jury found that it arrived that same day, after the agent had left, but there ought to have been someone there to receive it.
Held: The judges agreed that this was good . .
CitedTanham v Nicholson 1872
The tenant was mentally disabled. He lived in the house with his adult children. The landlord served a notice to quit at the premises by giving it to a daughter. She burned it and did not inform her father.
Held: The service was effective. It . .
CitedWilderbrook Ltd v Oluwu CA 16-Nov-2005
The rent review notice was sent by recorded delivery, and received and signed for at the demised premises. The lease incorporated the statutory presumption as to service in section 196(4) of the Law of Property Act 1925.
Held: The Court . .
CitedStidolph v American School in London Educational Trust Ltd CA 1969
The Court considered the requirements for terminating a lease of business premises under the 1954 Act and supporting Regulations . The Act expressly provided that notice could be served by registered post in a letter addressed to the tenant’s last . .
CitedBrimnes, the Tenax Steamship Co v Brimnes, Owners of CA 23-May-1974
The ship’s owners sent a telex to the charterers at 5.45 pm on 2 April 1970 withdrawing the vessel for late payment of the hire charge. The charterers’ normal business hours ended at 6.00 pm. The telex was not seen until the morning of 3 April, . .
CitedSun Alliance and London Assurance Co Ltd v Hayman CA 1975
The two-sided act of giving and receiving of a notice may be deemed to be done by some act other than actual receipt of the notification by the recipient.
Lord Salmon said: ‘Statutes and contracts often contain a provision that notice may be . .
CitedEdwards v Surrey Police EAT 1-Mar-1999
In order to constitute a dismissal, a party to an employment contract must communicate to the other the termination of the contract. Employees unhappy with their work regularly walk out, only to return later. Composing a letter of resignation but . .
CitedMcMaster v Manchester Airport Plc EAT 27-Oct-1997
The claimant was summarily dismissed by letter while on sickness leave. The letter arrived 9 November 1995, but he was on a day trip to France. He read the letter on return the day after. His unfair dismissal complaint was received by the industrial . .
CitedStephenson and Son v Orca Properties Ltd ChD 1989
The deadline for giving notice of a rent review to the tenant was 30 June. The notice was posted recorded delivery on 28 June, but it was not received and signed for until 1 July. The issue was whether it was deemed, under section 196(4) of the 1925 . .
CitedHindle Gears Ltd v McGinty EAT 1985
During a strike, employers were exempt from unfair dismissal claims only if they dismissed an entire striking workforce. They were not entitled to dismiss only those strikers who were ‘unwanted elements’. So if there were striking employees who were . .
CitedGeorge v Luton Borough Council EAT 16-Sep-2003
EAT Time Limits – Effective date of termination
EAT The acceptance of the employer’s repudiatory breach had to be communicated, but there might be a distinction between . .
CitedPotter and others v RJ Temple Plc (in liquidation) EAT 18-Dec-2003
The claimants faxed on the evening to the employers an acceptance of the employer’s repudiation of their contracts. The claim was not presented to the tribunal until the same day of the month three months later.
Held: The claim was out of . .
CitedBrown v Southall and Knight EAT 1980
The employee had gone on holiday at the time when the letter of dismissal arrived at his home and he did not actually see it until he had returned from his holiday.
Held: The ‘effective date of termination’ is a statutory concept which focuses . .
CitedLondon Transport Executive v Clarke CA 1981
The employee had taken unauthorised leave to go to Jamaica. After sending two letters to his home address asking for an explanation and giving an ultimatum, the employers wrote on 26 March saying that his name had been permanently removed from their . .
CitedSandle v Adecco UK Ltd EAT 27-Jun-2016
EAT Unfair Dismissal: Dismissal/Ambiguous Resignation
Unfair dismissal – dismissal – section 95(1)(a) Employment Rights Act 1996
The Claimant was an agency worker employed by the Respondent but . .
CitedGisda Cyf v Barratt CA 2-Jul-2009
The employer wrote to the employee on 29 November 2006 informing her of her dismissal, the letter arrived on the 30th, and she read it on the 4th of December. The employer appealed against a finding that the effective date of dismissal was the date . .
CitedDoe Ex Dem Buross And Others v Lucas And Others 1804
The tenant had died, leaving his widow as his executrix. The notice to quit was given by leaving it at the house where he had lived during his lifetime, but there was no evidence of it having come into his widow’s hands. It was argued that this was . .
CitedHogg v Brooks CA 25-Jun-1885
A lease of a shop contained a provision for the landlord to terminate the demise by delivering written notice to the tenant or his assigns. The lessee mortgaged the premises by way of underlease and disappeared. Written notice to determine the . .
CitedFreetown v Assethold Ltd CA 14-Dec-2012
A party to an arbitration under the 1996 Act disputed whether the award had been served so as to leave that party out of time to appeal.
Rix LJ spoke of the common law as requiring proof of receipt, whereas the Interpretation Act deemed receipt . .

Lists of cited by and citing cases may be incomplete.


Updated: 01 November 2021; Ref: scu.609104