If an employer doesn’t follow the correct procedure with notice of dismissal then it gives rise to legal claims. Except in cases of gross misconduct, an dismissed employee has the right to their statutory or contractual notice period (whichever is greater).
An employer can give notice of dismissal by email, letter or in person (but writing is best, to avoid dispute about when it happened). The notice only period starts when the employee is aware of it, not for example, when the letter is posted.
A recent case took the view that notice of dismissal sent by post is only effective once the employee has had a reasonable time to read it.
A letter giving notice of dismissal to a Mrs Haywood dropped through her letterbox while she was away on holiday. She read it on her return and the issue was when the notice period began. This was important, as she would get enhanced pension if dismissed after her 50th birthday, which she celebrated whilst on holiday. The employer argued that the notice period ran from the delivery date (which was before Mrs Haywood turned 50) and that they didn’t need to pay the enhanced pension.
The Supreme Court (formerly the House of Lords) upheld Mrs Haywood’s claim, stating that the notice period began when she had the opportunity to read the letter, not when it was delivered. This creates uncertainty for employers, as they cannot always predict when a letter will be read. As a result, the date of dismissal may not be that which was intended. However, the court ruled that only a reasonable amount of time would be afforded to an employee and wilful delay will not be considered.
To avoid this confusion, the contract can set out how notice of dismissal is served, then this ruling will not apply. It is also sensible to plan giving the notice to ensure the employee will not be away on leave or off ill, which can delay the process. If notice is to be served by post then it should be followed up by email or telephone call to make sure it has been received. Also, asking the employee to confirm receipt of the letter could be useful.
Finally, it is best practice to give notice at a face-to-face meeting as it guarantees clarity for both the employee and the employer.
Case report: Newcastle Upon Tyne Hospital NHS Foundation Trust v Haywood
Reporting by our intern Maliha
Image used under CC courtesy of Garry Knight.Read More