Emma McLoughlin, Associate Solicitor in our Employment team at our Wimbledon office touches on the complications of terminating an employee in the below article for our September edition of our Corporate Insights Newsletter.
The recent case of Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood [2018] UKSC 22 (Supreme Court) has served as a reminder of one of the bear traps employers can fall into when dealing with the termination of an employee.
In this case an employee was entitled to enhanced pension benefits if her employment ended on or after her 50th birthday (which fell on 20 July).
The employer had determined her role was to be terminated by reason of redundancy but the employee was away on holiday at the time it came to serve notice. The employer therefore sent a letter by recorded delivery on 20 April serving 12 weeks’ notice.
A postal card was put through the employee’s door and her father collected the letter from the post office depot on 26 April and left the letter at the employee’s home. The employee read the letter on 27 April on her return from holiday.
The key issue was whether the notice had been served by 26 April which would have meant the notice would have expired before the employee’s 50th birthday.
This case went all the way to the Supreme Court which eventually determined that in the absence of an express term in the employment contract stating otherwise, the notice starts to run, not when the letter would have been delivered in the ordinary course of post or when the letter was actually delivered but rather when the letter and its contents comes to the attention of the employee and they have either read it or had a reasonable opportunity to read it.
As a result the employee was entitled to the enhanced pension benefits.
The immediate points to take away from this case therefore are:
- As far as possible aim to give written notice of dismissal in person to avoid ambiguity over timing.
- For those times when notice cannot be given in person, ensure your contracts of employment contain clear written provisions as to when notice is deemed to take effect and update them if required.
In addition, never underestimate the importance of keeping an eye on timings and practical arrangements when dealing with and in the lead up to dismissals.
- Plan in advance and give yourself plenty of time to complete proceedings.
- Record the date each employee’s probationary period is due to expire and set reminders to flag this up in the run up to the date. It is often the case that shorter notice of termination can be given if the employee is still within their probationary period;
- Keep an eye on employees’ length of service, particular as it approaches two years’ (when employees gain enhanced rights) and don’t forget to take into consideration notice periods. There are nuances around the calculation of notice periods if you pay in lieu of notice, so do seek legal advice for clarity;
- Record any other key dates, e.g. the date when employees become entitled to enhanced benefits and again set reminders to flag this up in intervals in the run up to the date;
- Keep in mind planned absences of either employees or the management team dealing with the process and adapt your timescales accordingly.
- If you wish to set aside time to discuss possible settlement, don’t let negotiations drag on indefinitely and cause delays but instead set a deadline by which settlement discussions must have concluded otherwise proceed with the relevant dismissal proceedings where you are able to do so.
- Have contingency plans in place to account as far as possible for unexpected events, such as sickness absence.