Newcastle Upon Tyne NHS Foundation Trust v Haywood

For contractual employment notice, posting a dismissal letter is not enough unless the contract provides otherwise. The majority held that notice must reach the employee or an authorised agent. Arrival at the employee’s home may create only a rebuttable presumption of receipt. Actual reading is not necessarily required, but the employee proved that she had not received the notice before the relevant date. Statutory effective-date rules for summary dismissal do not govern contractual notice. Waiver arguments failed because there was no mutual agreement or reliance. The pension certification ground also failed because there was no evidence that the employer would have issued the relevant certification.

The respondent was employed by the appellant under a contract providing 12 weeks’ notice. Following redundancy, the appellant sent dismissal communications by recorded delivery, ordinary post and email. The respondent was abroad when the communications were sent. She opened the recorded-delivery letter on 27 April 2011, shortly before the period required to preserve an enhanced pension entitlement on reaching her 50th birthday.

HHJ Raeside QC held that notice took effect only when communicated to the respondent and declared that she remained employed until 20 July 2011. The appellant appealed on contractual notice, waiver and certification under Regulation E3 of the NHS pension scheme. The central issue was whether notice took effect on posting, delivery to the home, receipt, or communication.

1. Appeal dismissed by the majority. Proudman J and Arden LJ held that the respondent had not received effective notice before 27 April 2011. The notice therefore did not expire before her 50th birthday and the judge’s pension-related declaration stood.
2. Clause 19 of the contract regulated the length of the notice period. It did not establish a deemed date on which notice was given. Proudman J held that the contents of the dismissal letter had to be communicated. Arden LJ held that notice had to be received, although actual reading was unnecessary. Delivery to the home raised only a rebuttable presumption of receipt. On the facts, the respondent rebutted that presumption. The email was not sent to an address which she had authorised for personal communications, and the father-in-law who collected the recorded-delivery letter was not shown to be her agent.
3. The majority distinguished the statutory effective-date rules considered in Gisda Cyf v Barratt [2010] UKSC 41. Those rules concerned statutory limitation and summary dismissal. The present issue concerned termination by contractual notice and was governed by the general law of contract. Geys v Société Générale, London Branch [2012] UKSC 63 established the need for notice in clear terms, but did not determine when contractual notice took effect.
4. The waiver arguments failed. Acceptance by conduct required a positive act or forbearance amounting to mutual agreement. Pursuing remedies was at most equivocal. Waiver by estoppel required knowledge, inconsistent conduct and reliance causing inequity. There was no evidence of reliance.
5. As to Regulation E3 of the NHS Pensions Regulations 1995, the relevant question was whether the appellant would have certified that the respondent had unreasonably refused suitable alternative employment. The appellate court could not make the missing factual finding, and there was no evidence that the appellant would have issued the certificate. That ground therefore failed.
6. Dissent. Lewison LJ would have allowed the appeal. He considered that contractual notice was effective when the letter reached the employee’s correct address, whether or not she was present or had read it. On that approach, notice was effective by 26 April 2011.

1. Court of Appeal (Civil Division): By a majority, dismissed the appeal. Lewison LJ dissented and would have allowed it.
2. High Court, Chancery Division, Leeds District Registry: HHJ Raeside QC ordered on 27 May 2015 that the respondent remained employed until 20 July 2011 and was entitled to the associated pension and arrears.