Newcastle Upon Tyne NHS Foundation Trust v Sandi Haywood
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Proudman,Lord Justice Lewison,Lady Justice Arden |
| Judgment Date | 17 March 2017 |
| Neutral Citation | [2017] EWCA Civ 153 |
| Docket Number | Case No: Appeal number A3/2015/2286 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 March 2017 |
[2017] EWCA Civ 153
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HHJ RAESIDE QC
3BM30070
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden DBE
Lord Justice Lewison
and
Mrs Justice Proudman DBE
Case No: Appeal number A3/2015/2286
Holly Stout (instructed by Samuel Phillips) for the Appellant
Tom Brown (instructed by Irwin Mitchell LLP) for the Respondent
Hearing dates: 14 and 15 February 2017
Approved Judgment
This an appeal against the order dated 27 May 2015 of Judge Raeside QC, sitting as a Judge of the High Court of Justice, Chancery Division, at the Leeds District Registry. By his order, the judge,
(a) declared that the appellant employed the respondent up to and including 20 July 2011 (her 50 th birthday),
(b) Ordered the appellant to ensure that the respondent would be paid a pension under Regulation E3 National Health Service ("NHS") Regulations 1995, pay her the arrears of that pension and the five days pay which it had not previously paid,
(c) Stayed the order pending this court's determination of permission to appeal,
(d) Ordered the appellant to pay the appellant's reasonable costs, the costs of the hearing on 14 May 2015 and make a £45,000 interim payment, and
(e) Refused the appellant's application for permission to appeal.
On 5 November 2015 Patten LJ granted permission to appeal generally and stayed the order until this court had decided the appeal.
The respondent was employed as an associate director of Business Development (Band 8d) by Newcastle Primary Care NHS Trust ("PCT") from 1 November 2008 to July 2011. Newcastle and North Tyneside Primary Care Trusts had a joint board, of which Mrs Haywood was a member. Her role was business development for community services in both Newcastle and North Tyneside Primary Care Trusts which had a joint budget of £80m. The value of the business finally transferred was £54m. Hers was the only non-clinical Band 8d post transferred to the appellant. She was paid £84,446 per annum, the top of the pay scale for Band 8d posts.
Section 1 of the Statement of Principal Terms and Conditions of Employment (to which I shall refer as the respondent's contract. There was also a service handbook of NHS terms and conditions which is irrelevant to this appeal) provided in section 1 that the minimum notice period from the respondent or the appellant was 12 weeks. There was apparently a break in the respondent's continuous employment so that her statutory notice entitlement would have been only three weeks, but it is accepted for present purposes that her contractual notice entitlement was 12 weeks.
Following a merger of NHS bodies the respondent's contract was transferred to the appellant on 1 April 2011. Thus the appellant was not the original party contracting as employer. The respondent was informed by letter that she was at risk of redundancy. On 13 April 2011 she met two representatives of the appellant, Mrs Angela Dragone and Miss Deirdre Fawcett, at which, among other matters,
(a) The Organisational Change Policy was discussed,
(b) The fact that no final decision on redundancy had been taken was stated,
(c) Two alternative Directorate Management jobs were apparently offered to the respondent, both of which she initially rejected, because they were banded at 8c, because she did not report directly to the board, because the breadth of responsibility and accountability which her then current role had was, in the respondent's view, not comparable and because she would suffer a drop in pay, and accordingly, pension.
(d) The respondent said that she would be entitled to an NHS pension of about £200,000 if she was made redundant after 20 July 2011,
(e) It was accepted that the respondent was entitled to 12 weeks' notice,
(f) The respondent said that she was on annual leave from 19 April until 3 (or, according to [10] of her witness statement dated 21 August 2013) 5 May 2011. She also said in her witness statement that she said that she would be on holiday in Egypt Egypt from 19–26 April 2011 (but this does not appear to have been the case),
(g) The respondent accepted that her post was redundant,
(h) The respondent asked that no decision would be made in her absence but Miss Fawcett, and by implication Mrs Dragone, did not agree to this.
Following this meeting the respondent began sick leave on 13 April 2011, brought on apparently by the stress of the meeting, and commenced annual leave on 18 April. She flew to Egypt on 19 April for one week and was due to return on 26 April but, in accordance with a letter from Thomas Cook, she actually arrived back on 27 April 2011. She remained on sick leave until 20 May 2011.
The respondent was made redundant. The principal issue for the judge was whether she received 12 weeks' notice of dismissal before her 50 th birthday on 20 July 2011 and therefore received a lower pension than she would have done if the notice period had expired on or after her 50 th birthday. The appellant calculated her notice period as expiring on 15 July 2011, whereas the respondent and the judge thought that her notice did not expire until after her 50 th birthday so that she was entitled to a higher pension.
The reason for the judge's decision was that notice had only been given once the respondent had actually read a letter of dismissal on 27 April 2011 so that the contents were communicated to her.
The dismissal
On 20 April 2011 the appellant sent three letters, one by recorded delivery, wrongly dated 21 April 2011, a slip being left at the respondent's house on 21 April 2011 (see [8] of the judgment referring to [10.4] of the Defence which pleads 22 April 2011 (a date which they got from the appellant's solicitors) and contrast [37 (iii) and (iv)] where the judge finds as a fact that the slip was left on 21 April 2011. The respondent's father in law Sidney Crabtree collected the recorded delivery letter from the sorting office on 26 April 2011 and left it for the respondent. There was a letter (apparently: see [36] of Mrs Dragone's witness statement) in the same terms by normal post, although the judge does not make any findings about whether or when this was received. There was also a letter sent by email to the respondent's husband's email address at 10.55 am. The communications all purported to terminate the respondent's contract with 12 weeks' notice terminating on 15 July 2011, placing the respondent on garden leave. 21 April 2011 to 15 July 2011 is 12 weeks plus one day. 20 April 2011 is 12 weeks plus two days. It is possible that one takes the respondent's 50 th birthday, 20 th July 2011, working backwards from there, to see whether a notice was properly served which means that the notice would have to have been served by 26 April 2011. The judge found that there were only two communications, presumably (see below) the email and the recorded delivery letter.
The email is important, says the respondent, but (a) it was sent to the respondent's husband's address, (b) the appellant provided a postal address, (c) the respondent had not given the appellant permission to send communications to her at this address, although she had herself used it, (d) the respondent's husband did not access it until after the recorded delivery letter was read and (importantly) (e) we were not referred to any authority about the use of emails other than Chitty on the Law of Contracts Vol 1, which says, in the context of offer and acceptance, that is to say, contract formation, "Therefore, in general, the time of acceptance by email should be when the email is received by the offeror" and (after discussion), "an email acceptance should be treated as having been received when it arrives on the offeror's email server."
It is not entirely clear from the judge's judgment which letter the respondent read, the letter sent by ordinary post or the recorded delivery letter (or indeed which are the two communications that he found in [37 (xii)] of the judgment to have been received by the respondent), although I say "entirely" because it looks as if he was referring to the email and the recorded delivery letter (see [37 (xv] and (xvi)) but something arrived at the respondent's home by 26 April 2011. The respondent says that she opened the recorded delivery letter at 8.30 am on 27 April 2011. The respondent's husband did not read the emailed letter until 10.14 am on 27 April 2011.
Thus a question for the judge was whether posting the letter was enough by itself ("the postal rule"), whether it had to arrive at the home of the recipient ("received" or "receipt"), or whether it had to be actually read ("communicated" or "communication").
Unknown to the appellant the respondent wanted to have a communication-free break and the judge found (see [37 xvii, xviii and xx] and [72] of the judgment), and there is no appeal on this point, that she had not unreasonably avoided receiving the notice.
At the time of sending the notice, the appellant knew that, (i) the respondent was commencing sick leave from 13 April 2011 and that (ii) she had booked a holiday in Egypt. But the appellant says it did not know, pace [29] of the judgment, (iii) when she was leaving the country, (iv) when she was returning, (v) what arrangements she had made for collecting her post or (vi) when she was likely to return to work, bearing in mind the fact that she was on sick leave. Nevertheless, the appellant knew that the respondent could be away when the letter arrived as the respondent had told Miss Fawcett and Mrs Dragone that she would be on annual leave until 3 May 2011. Her annual leave card, which was agreed with the PCT in January, apparently said she would be away from 18–28 April 2011. The respondent's counsel, Mr Brown, says it is...
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