This week we take a look at the recent case of Newcastle upon Tyne NHS Trust v Haywood, in which the NHS suffered financial consequences as a result of failing to ensure effective delivery of notice of termination.
Ms Hayward worked for Newcastle NHS Trust as Associate Director of Business Development. At age 49 she was informed she was at risk of redundancy. She subsequently went off sick with stress before going on holiday. The day after her holiday began her employer sent her a letter and email with written notice to terminate her employment. As she was on holiday she did not read the letter or email until she returned to the UK.
There was no clause in Ms Haywood’s contract specifying when notice would take effect.
The date at which notice was deemed to be given to her was significant because if notice was deemed to have been given during her holiday, then she would have been 49 at the date of her termination - whereas if notice was only deemed to have been given when she returned and read the letter, then she would have been 50 at the date of termination and entitled to a much more generous pension.
The Court of Appeal held that, in the absence of a contractual provision specifying when notice would take effect, notice of termination was deemed to have been given when Ms Haywood returned from holiday and read the letter. This meant she was 50 at the date of termination and entitled to the more generous pension.
Although this case had a very specific set of facts, it could apply in other situations where employees are difficult to contact – for example, while off sick or on holiday during a redundancy or disciplinary process. If there are no contractual provisions in their contract to specify when notice will take place then employers may be left in a state of uncertainty over whether notice has started or not.
What can employers do?
- Review when notice of termination is effective from – consider phoning or delivering the news face to face first, with a letter and/or email as follow up to the conversation.
- Check your contracts - do they contain a clause stating when notice will be deemed to be given? If not, this may be something you want to consider adding.
For details of management training courses on redundancy process (including staff representative training), courses which focus on disciplinaries and dismissal as well as information on our employment contract and policy review tracker services please contact the Employment Team at [email protected] or on 0118 952 7284.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.