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This question was considered on appeal to the Supreme Court in Newcastle Upon Tyne Hospitals Foundation Trust v Haywood. Mrs Haywood was put at risk of redundancy following a reorganisation of the Trust. Both parties knew that if she was dismissed before her 50th birthday, she would lose her entitlement to an early retirement pension worth £400,000.
The Trust were aware that, provided they gave notice before 27th April, the notice period would end before Mrs Haywood’s 50th birthday and avoid her activating her early pension entitlement.
Mrs Haywood was on holiday between 18th April and 27th April. The Trust gave written notice of termination on 20 April, both posted to her home and by email to her husband’s email address. Mrs Haywood’s father collected the letter from the Post Office depot on 26th April and she read it when she returned from her holiday the next day. Her husband read the email notice on 27th April.
The Trust argued that notice was effective from the date it was delivered (26th April), but Mrs Haywood contended it was only effective from when she opened and read the letter (27th April).
The Supreme Court ruled that the notice only took effect once it was received by Mrs Haywood and she had either read, or had a reasonable opportunity, of reading it. Therefore, her 12-week notice period ran to her 50th birthday and she was entitled to claim her early retirement pension.
It is important to remember that, in this case, there was no contractual term covering the service of notice. Furthermore, what is deemed to be a “reasonable opportunity” will depend on the circumstances of each case. For example, if she had returned home a day earlier, but deliberately avoided opening the letter to improve her position, her claim may have failed.
Given this ruling, employers should ensure that their contracts of employment set out how notice can be served and when it will be deemed to have been received.