When does written notice of dismissal delivered by post take effect?
The Supreme Court has ruled that, in the absence of a specific term in the employment contract, notice of dismissal by an employer does not take effect until the employee has read it or had a reasonable opportunity of doing so
In that case, the Claimant’s role was a risk of redundancy as she approached her 50th birthday. The birthday was significant: if she was made redundant on or after her 50th birthday, which was on 20 July, she would be entitled to an early retirement pension but not otherwise.
On 20 April, her employer sent a letter to the Claimant’s home address by recorded delivery, purporting to terminate her contract with 12 weeks’ notice ending on 15 July. However, she was away on holiday when the Post Office tried to deliver the letter. Her father-in-law collected it and took it to her house on 26 April. She read it on 27 April when she returned from her holiday.
The issue for the court was whether the Claimant’s 12 weeks’ notice had been served by 26 April. If it had, the notice period would have expired before the Claimant’s 50th birthday on 20 July, meaning she would not receive a pension.
The court ruled in the Claimant’s favour saying that, in the absence of an express contractual term specifying when notice of termination was effective, the notice took effect from the date the Claimant received it in the sense of having personally taken delivery of the letter containing it. The Claimant’s notice period had therefore started to run when she read the letter on 27 April.
The Supreme Court dismissed the employer’s appeal by a 3:2 majority
The Court ruled that, when dealing with written notice sent by post, and in the absence of a provision in the contract, specifying when a notice of termination is effective, notice starts to run when the letter comes to the attention of the employee and they have either read it or had a reasonable opportunity of doing so.
The Court rejected two alternatives that the notice would start to run when the letter would have been delivered in the ordinary course of post or when it was in fact delivered to that address.
The effect of this ruling is that notice of dismissal by post starts to run when the letter comes to the attention of the employee and they have either read it or had a reasonable opportunity of doing so.
If employers want protection for occasions when it is not possible to communicate with the employee in person, contracts can be drafted to include provisions that deem when notice takes effect.
Developments in technology mean that electronic communication (with the greater proof offered by read receipts, server receipts and so on) may soon replace written letters and the need for deeming provisions will be reduced.