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, a 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. In writing is best, to avoid dispute about when it happened. The notice period starts when the employee becomes aware of it. Not for example, when the employer posts the letter.
Recent case law
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. Mrs Haywood 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 upheld Mrs Haywood’s claim. The court stated the notice period began when she had the opportunity to read the letter, not upon delivery. Creating uncertainty for employers as they cannot be sure as to 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.
How notice of dismissal is to be served should be set out in the contract, then this ruling will not apply. The employer should check the employee will not be away on leave or off ill, which can delay the process. The employer should serve the notice by post and follow it up by email or telephone to make sure it has been received. Also, the employer can ask the employee to confirm receipt of the letter.
Finally, it is best practice for the employer 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