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When was the employee actually dismissed?
It can often be tricky to know what date an individual’s employment is terminated – especially if you have conveyed that information by post. A long-running case (Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood) has finally been decided by the Supreme Court. It was important because the date on which notice took effect would determine whether Mrs Haywood's employment terminated before or after her 50th birthday. If happened after that date, she would be entitled to a significantly higher pension.

There was no express clause in her written statement of particulars of employment (contract) to say when notice took effect. In previous cases it had been established that in the context of statutory employment claims, notice sent by letter is effective when the employee reads the notice or has had reasonable opportunity to do so. However, in this particular case, Mrs Haywood was away on holiday – and the employer knew that to be the case. It knew that she could not receive or read the letter for at least a week. This was despite the fact that her father-in-law had collected the recorded delivery letter from the post office and left it at her house unopened for her to read on her return.

The Court’s decision was that the termination of Mrs Haywood’s employment did not take place until she had returned from holiday and had had the opportunity to read the letter – not when it was collected from the post office. She was therefore not dismissed until after her 50th birthday (which occurred whilst she was away) and so she was entitled to the higher pension entitlement.

What this means to employers is that if the date of termination is crucial to you, it makes sense to give the employee the letter by hand – or to reinforce that by sending a copy to a regularly used email address (preferably with some means of generating a receipt.) If it is important, you may find that employees will become more difficult to contact, but it is vital that you can prove the date on which the notice is served.
Posted on 01 Jun 2018

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