Newcastle Upon Tyne NHS Foundation Trust v Sandi Haywood
| Jurisdiction | England & Wales |
| Judge | Lord Wilson,Lord Lloyd-Jones,Lady Black,Lady Hale,Lord Briggs |
| Judgment Date | 25 April 2018 |
| Neutral Citation | [2018] UKSC 22 |
| Court | Supreme Court |
| Date | 25 April 2018 |
[2018] UKSC 22
Lady Hale, President
Lord Wilson
Lady Black
Lord Lloyd-Jones
Lord Briggs
Appellant
John Cavanagh QC
Holly Stout
(Instructed by Samuel Phillips)
Respondent
Caspar Glyn QC
Tom Brown
(Instructed by Irwin Mitchell LLP (Birmingham))
Heard on 20 November 2017
( with whomLord WilsonandLady Blackagree)
If an employee is dismissed on written notice posted to his home address, when does the notice period begin to run? Is it when the letter would have been delivered in the ordinary course of post? Or when it was in fact delivered to that address? Or when the letter comes to the attention of the employee and he has either read it or had a reasonable opportunity of doing so?
Given the vast numbers of working people who might be affected by this issue, it is perhaps surprising that it has not previously come before the higher courts. This Court, in Gisda Cyf v Barratt [2010] UKSC 41; [2010] ICR 1475, held that the “effective date of termination” for the purpose of unfair dismissal claims under the Employment Rights Act 1996 was the date on which the employee opened and read the letter summarily dismissing her or had a reasonable opportunity of doing so. But the Court was careful to limit that decision to the interpretation of the statutory provisions in question. The common law contractual position might be quite different, as indeed the Court of Appeal had said that it was: [2009] EWCA Civ 648; [2009] ICR 1408.
There is nothing to prevent the parties to a contract of employment from making express provision, both as to how notice may or must be given and for when it takes effect, as happened in Geys v Société Générale, London Branch [2012] UKSC 63; [2013] 1 AC 523, but that was not done in this case. We are considering, therefore, the content of a term which must be implied into the contract of employment. The employer contends that notice is given when the dismissal letter is delivered to the employee's address (which by statute is deemed to be when the letter would be delivered in the ordinary course of post unless the contrary is shown). The employee contends that notice is not given until the letter comes to the attention of the employee and she has had a reasonable opportunity of reading it.
The essential facts are very simple. Mrs Haywood was continuously employed by various bodies in the NHS for many years. On 1 November 2008, she began employment with the Newcastle and North Tyneside Community Health PCT. On 1 April 2011, her employment transferred to the Newcastle-upon-Tyne NHS Foundation Trust (“the Trust”) on the same terms and conditions as before. Section 19 of her contract of employment with the PCT provided that “Unless there is mutual agreement that a different period should apply, this employment may be terminated by you or NPCT by the notice period as set out in section 1 …”. Section 1 gave the “Minimum notice period from you or NPCT” as 12 weeks.
Very shortly after the transfer, the Trust identified Mrs Haywood's post as redundant. As both parties knew, if her employment terminated by reason of redundancy on or after her 50th birthday on 20 July 2011, she would be entitled to claim a non-actuarially reduced early retirement pension. If it terminated before that date, she would not. At a meeting to discuss her possible redundancy on 13 April 2011, Mrs Haywood informed the Trust that she had booked two weeks annual leave from Monday 18 April, was going to Egypt, and would be due back at work after the extended bank holiday weekend on 3 May 2011. The period of leave had been recorded on the Trust's records.
Mrs Haywood asked that no decision be taken while she was away, but the Trust did not agree to that. On 20 April 2011, it issued written notice (in fact dated 21 April) of termination of her employment on the ground of redundancy. The Trust maintained that the letter was sent by three methods: by email to her husband's email address; by recorded delivery; and by ordinary first class post. However, the Trust sought (unsuccessfully) to recall the notice sent by email that same day. The trial judge was satisfied that only two notices had been sent — by email and by recorded delivery (para 37(xii)). The email is not relied on by the Trust. Hence the letter which is relevant in this appeal is the one sent by recorded delivery.
The crucial date was 27 April. Notice given on or after that date would expire on or after Mrs Haywood's 50th birthday. Notice given before that date would expire earlier. Mrs Haywood and her husband were away on holiday in Egypt from 19 to 27 April. They asked Mr Haywood's father, Mr Crabtree, to look after the house while they were away. He went daily to check that it was secure, remove mail from the doormat to the hall table and water the plants. A recorded delivery slip was left at their home on 21 April. On 26 April, Mr Crabtree found the recorded delivery slip, collected the letter from the local sorting office and left it at their home. Mr and Mrs Haywood arrived back there in the early hours of 27 April. Mrs Haywood opened and read the letter later that morning.
Mrs Haywood made various Employment Tribunal claims in respect of her dismissal, which were not pursued. In these High Court proceedings, she claims that her 12 weeks' notice did not begin until 27 April, when she received and read the letter, and therefore expired on 20 July, her 50th birthday, and accordingly that she is entitled to the early retirement pension.
The claim was tried by His Honour Judge Raeside QC, sitting as a High Court Judge, in January 2014. He handed down a “partial judgment” on 27 May 2015: Case No 3BM30070. He held that it was necessary to imply a term that Mrs Haywood had a right actually to be informed, either orally or in writing, of her dismissal; she had to have a reasonable opportunity actually to look at the letter (paras 70, 71). He declared that Mrs Haywood was still employed by the Trust on 20 July 2011 and made various orders relating to the payment of her pension, both in the future and in arrears. But he granted a stay of those provisions pending a possible appeal and they have remained stayed ever since.
The Trust's appeal to the Court of Appeal was dismissed by a majority: [2017] EWCA Civ 153. Proudman J held that “the contents of the letter had to be communicated to the employee” (para 57). Arden LJ held that the letter had to be “received” (para 130(2)); where it has been delivered to the party's address, there is a rebuttable presumption that it has been received (para 136); but that presumption had been rebutted by the judge's finding that Mrs Haywood did not receive the letter until 27 April — there was no need for her to have read the letter but she had to have received it (para 149). Lewison LJ dissented: “notice is validly given under the contract when a letter containing the notice actually arrives at the correct destination, whether the recipient is there to open it or not” (para 124).
Before turning to the major issue of principle, which divided the Court of Appeal and also divides this Court, it is convenient to mention a point which was raised for the first time in the Court of Appeal by Lewison LJ. This is that Mr Crabtree, “By taking it upon himself to collect and sign for the letter, … must, in my judgment, be taken to have been acting as Mrs Haywood's agent” (para 84). Arden LJ disagreed: “There was no argument on this at the hearing or finding by the judge. [Mr Crabtree's] witness statement is consistent with his having acted on his own initiative” (para 134). In their Grounds of Appeal, the Trust argued that Lewison LJ was right to hold that Mr Crabtree was acting as Mrs Haywood's agent and that delivery to him was therefore delivery to her. It is fair to say that very little time was devoted to this ground in the hearing before us. On its own, it does not raise a point of law of general public importance for which permission to appeal would be granted and arguably would require a finding of fact by the trial judge. At all events, in my judgment (with which I understand that all my fellow Justices hearing this case agree), on the evidence that was available to the court, Arden LJ was correct to hold that, in acting as he did, Mr Crabtree was not acting at Mrs Haywood's agent for the receipt of the letter.
The Trust argues that there is a common law rule, principally derived from some historic landlord and tenant cases, which supports its case that notice is given when the letter is delivered to its address. Mrs Haywood argues that the common law rule is not as clear cut as the Trust says that it is. Furthermore, there is a consistent line of Employment Appeal Tribunal (EAT) authority which supports her case that, in the absence of an express contractual provision to the contrary, there is an implied term that a notice served by an employer upon an employee takes effect only when it has actually been received by the employee and the employee has either read or had a reasonable opportunity of reading it. It is convenient, therefore, to look first at the non-employment cases principally relied upon by the Trust and then at the employment cases principally relied upon by Mrs Haywood.
The Trust relies on a line of cases dating back to the 18th century, almost all in the landlord and tenant context, holding that delivery of a notice to the tenant's (or landlord's) address is sufficient, even though it has not actually been read by the addressee. Some of these are in the context of an express statutory or contractual provision that service may be effected by post.
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