Case Analysis: Newcastle Upon Tyne NHS Foundation Trust v Haywood [2017] EWCA Civ 153

The Court of Appeal has ruled that in the absence of an express contractual term, notice of dismissal only took effect when the recipient Ms Haywood, who took personal delivery of the letter of termination, read the contents of the letter.

The crux of this case turned on whether Ms Haywood, who was made redundant, received 12 weeks' notice of dismissal before, on, or after her 50th birthday on 20 July 2011.  If received before she would be entitle to a lower pension than she would have done if the notice period had expired on or after her 50th birthday. Notice would have had to have been given by 26 April 2011 for the lower rate of pension to apply.

The reason for the judge's decision, which favoured Ms Haywood, was that notice had only been given once the respondent had actually read the letter of dismissal on 27 April 2011 so that the contents were communicated to her. The Trust appealed the High Court decision to the Court of Appeal.

Three letters were sent to Ms Haywood on 20 April 2011: one by recorded delivery, wrongly dated 21 April 2011. Ms Haywood’s father in law, Mr Crabtree, collected this letter from the sorting office on 26 April 2011 and left it for her. Another letter was sent in normal post and no findings were made about when this was received. A third letter was sent by email to Ms Haywood’s husband’s email address. The communications all purported to terminate the respondent's contract with 12 weeks' notice terminating on 15 July 2011, placing the respondent on garden leave. With regard to the email, Ms Haywood had not given permission to use her husband’s email address for communications, her husband did not access the email until after the recorded delivery letter was read and in general, acceptance by email should be when the email is received by the offeror, not her husband.

The Court of Appeal held that, in the absence of an express term, the notice was only effective when Ms Haywood actually read the dismissal letter on 27 April 2011, on her return from holiday. It concluded that since there was no finding that Mr Crabtree had authority to receive the notice of termination for Ms Haywood, the judge was entitled to look to the time when Ms Haywood found the letter containing the notice and to hold that in all the circumstances she did not receive the notice until 27 April 2011. She had arrived home in the early hours of the morning after a long, delayed and rerouted flight from Egypt, and so she was not likely to have looked for post at that point. The Trust knew she was due to be in Egypt or at least that there was a substantial risk that she would not be at home when the letter was expected to arrive. The letter was not delivered by the Post Office but arrived at her house due to the action of Mr Crabtree.  27 April was both the date she arrived home and the date she read the letter. The Court accepted that she did not need to read the letter, but she needed to actually receive it.