Ms Haywood was placed at risk of redundancy. If her employment terminated on or after her 50th birthday, she would be entitled to a non-actuarially reduced early retirement pension, a significant benefit to her. To avoid this happening her employer, the Trust, would have to give Ms Haywood 12 weeks’ contractual notice on or before 26 April (2011). Her employment contract did not stipulate when the service of notice would take effect.

As Ms Haywood was away on annual leave at the time, the Trust sent her notice of termination by recorded delivery to her home address. It arrived on 21 April, a family member collected the letter and left it at her house on deadline day, 26 April. Ms Haywood then read the letter the next day.

Ms Haywood claimed that notice would only run from the day she read the letter, which meant that she would still be employed by the Trust on the day she turned 50; the Trust argued that notice began either when the letter would have ordinarily been delivered, or when it was in fact delivered to Ms Haywood’s home.

The case made its way to the Supreme Court. The majority decided that written posted notice would only start to run when the employee becomes aware of it, and they have either read it or had a reasonable opportunity of doing so. This is unless the parties have agreed a contractual term which specifies that notice takes effect at some other time.

Conclusion and practical points
The Supreme Court’s decision brings the contractual position regarding the giving of notice (unless altered by a contractual term), into line with the calculation of the effective date of termination position for unfair dismissal purposes. This should minimise the circumstances where there are different termination dates for different legal claims.

But this can leave uncertainty for an employer because, if sending the letter by post, it cannot be certain when it is read by the employee. It could mean that where the letter specifies the termination date but there is a delay in the employee reading the letter, they may be given shorter notice than required by their contract. Without an effective payment in lieu of notice clause, this would mean that the employer has committed a fundamental breach of contract, entitling the employee to resign and claim constructive dismissal. In turn, this could mean that any post-termination restrictions will be unenforceable.

There are two practical steps that employers can take in light of this decision. A clause can be included in employment contracts specifying when notice takes effect when given by post. If this is not done, it will be safer to hand the employee a letter confirming their termination date.

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