Newcastle upon Tyne Hospitals NHS Foundation Trust (Appellant) v Haywood (Respondent)
[2018] UKSC 22
Easter Term
[2018] UKSC 22
On appeal from: [2017] EWCA Civ 153
| JUDGMENT |
Newcastle upon Tyne Hospitals NHS Foundation Trust (Appellant) v Haywood (Respondent)
before
Lady Hale, President
Lord Wilson
Lady Black
Lord Lloyd-Jones
Lord Briggs
JUDGMENT GIVEN ON
25 April 2018
Heard on 20 November 2017
Appellant Respondent
John Cavanagh QC Caspar Glyn QC
Holly Stout Tom Brown
(Instructed by Samuel (Instructed by Irwin
Phillips) Mitchell LLP (Birmingham))
LADY HALE: (with whom Lord Wilson and Lady Black agree)
1. 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?
2. 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.
3. 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 facts
4. 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.5. 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.
6. 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.
7. 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.
8. 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.9. 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.
10. 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).
The agency point
11. 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 issue of law12. 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 non-employment cases
13. 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.14. In Jones d Griffiths v Marsh (1791) 4 TR 464; 100 ER 1121, it was held that
delivering a notice to quit to the tenant’s maidservant at his house (which was not
the demised premises) was sufficient. Personal service was not necessary in every
case, although it was in some. Kenyon CJ remarked that “in every case of the service
of a notice, leaving it at the dwelling house of the party has always been deemed sufficient”. Doe d Neville v Dunbar (1826) Moot M 9; 173 ER 1062 was to the same
effect. Abbott CJ had no doubt as to the sufficiency of a notice served at the tenant’s home, even though the tenant was away: “were it otherwise, a landlord would have
no means of determining a tenancy, if his tenant happened to be absent from his
house at the time when it was necessary to serve the notice”. In Papillon v Brunton
(1860) 5 H & N 518; 157 ER 1285, a tenant served notice to quit by posting it to his
landlord’s agent. The jury found that it arrived that same day, after the agent had
left, but there ought to have been someone there to receive it. The judges agreed that this was good service. In Tanham v Nicholson (1872) LR 5 HL 561, delivery to the
tenant’s adult children at the property was held sufficient. But Lord Westbury
pointed out that, in Jones, Lord Kenyon had limited his remarks to notices affecting property, such as notices to quit, and not those notices which are intended to bring
an individual into personal contempt (p 573). As Lady Black’s much fuller treatment
demonstrates, each of these cases could be seen as service upon an agent authorised
to accept it.15. The other landlord and tenant cases relied on by the Trust are less helpful, because they involved express statutory and/or contractual terms. Stidolph v American School in London Educational Trust Ltd [1969] 2 P & CR 802 concerned the requirements for terminating a lease of business premises under the Landlord and Tenant Act 1954 and the Landlord and Tenant (Notices) Regulations 1954. The Act expressly provided that notice could be served by registered post in a letter
addressed to the tenant’s last known place of abode. The landlord’s solicitors had
sent, by registered post, an unsigned notice to quit accompanied by a letter signed
by them. This was held sufficient. But Lord Denning observed that “I do not think
that a tenant can avoid the effects of a notice like this which is properly sent by registered post to him by saying that he did not take it out of the envelope or read
it” (p 805). And Edmund Davies LJ said this (pp 805-806):
“Based upon considerations mainly of business efficacy, there
is a long-standing presumption in our law that a letter, duly addressed, pre-paid and posted, which is not returned to the sender has in fact been received by the addressee - unless he can establish the contrary. The usefulness of a presumption of this kind would be destroyed if the addressee could
nevertheless be heard to say: ‘Although I received the postal
packet quite safely, I did not read the contents,’ or ‘I did not
examine the postal packet to see that I had extracted all that it
contained’.”
Both observations are as consistent with Mrs Haywood’s case as they are with the
Trust’s.16. In Stephenson & Son v Orca Properties Ltd [1989] 2 EGLR 129, the deadline for giving notice of a rent review to the tenant was 30 June. The notice was posted recorded delivery on 28 June, but it was not received and signed for until 1 July. The issue was whether it was deemed, under section 196(4) of the Law of Property Act
1925 (see para 34(2) below), to have been delivered “in the ordinary course of post”
on 29 June. Scott J held that that would have been the case with an ordinary registered letter, but a recorded delivery letter was not received until signed for. So the notice was out of time.
17. Wilderbrook Ltd v Olowu [2005] EWCA Civ 1361; [2006] 2 P & CR 4, also concerned a rent review notice sent by recorded delivery, received and signed for at the demised premises. The lease incorporated the statutory presumption as to service in section 196(4) of the Law of Property Act 1925 (see para 34(2) below). The Court
of Appeal rejected the argument that it was not “received” in accordance with the
contract until the tenant had actually seen it. Carnwath LJ quoted Lord Salmon in Sun Alliance & London Assurance Co Ltd v Hayman [1975] 1 WLR 177, at p 185:
“Statutes and contracts often contain a provision [that] notice
may be served upon a person by leaving it at his last known place of abode or by sending it to him there through the post. The effect of such a provision is that if notice is served by any of the prescribed methods of service it is, by law, treated as
having been given and received.”
Once again, this does not help us to determine what term as to service is to be implied into an employment contract, to which section 196(4) does not apply.
18. With the exception of the employment case of London Transport Executive v Clarke (dealt with below at para 29), the only case outside landlord and tenant law relied on by the Trust is The Brimnes, Tenax Steamship Co Ltd v The Brimnes
(Owners) [1975] QB 929, CA. One issue was when the owners’ notice withdrawing
the vessel from hire, sent by telex, had been received by the charterers. It was held
effective when it arrived at the charterers’ machine during business hours and not
when it was actually read. Megaw LJ said this, at pp 966-967:
“With all respect, I think that the principle which is relevant is
this: if a notice arrives at the address of the person to be notified at such a time and by such a means of communication that it would in the normal course of business come to the attention of that person on its arrival, that person cannot rely on some failure himself or his servants to act in a normal business like manner in respect of taking cognisance of the communication so as to postpone the effective time of the notice until some
later time when it in fact came to his attention.”
19. Cairns LJ made this general observation, at pp 969-970:
“In my opinion, the general rule is that notice must reach the
mind of the charterer or of some responsible person on his behalf. There must clearly be exceptions to this rule: for example, if the charterer or his agent deliberately keeps out of the way, or refrains from opening a letter with a view to avoiding the receipt of notice. How much further than this do exceptions go? I feel little doubt that if an office were closed all day on an ordinary working day, though without any thought of a notice of withdrawal arriving, such a notice delivered by
post on that day must be regarded as then received.”
20. These statements can scarcely be seen as a ringing endorsement of the Trust’s
case, as their starting point is receipt. Notices delivered during normal working hours to an office which can reasonably be expected to be staffed to receive and deal with them properly may be in a different category from notices delivered to a private home.
The employment cases
21. Mrs Haywood relies upon a line of EAT cases dating back to 1980, holding in a variety of contexts which do not all depend upon the construction of the employment protection legislation, that written notice does not take effect until the employee has read it or had a reasonable opportunity of doing so.
22. In Brown v Southall & Knight [1980] ICR 617, the issue was whether the
employee had the 26 weeks’ continuous employment, ending with “the effective
date of termination”, then required to bring an unfair dismissal claim. The letter
summarily dismissing him was sent by post after he had left to go on holiday. His period of employment was less than 26 weeks on the date that it would have been delivered to his home but more than that on the date when he arrived back and read
the letter. The EAT (Slynn J presiding) held that he had the necessary 26 weeks’
employment, for the reasons given at p 628:
“It seems to us that it is not enough to establish that the
employer has decided to dismiss a man or, indeed, has posted a letter saying so. That does not itself, in our view, terminate the contract. Nor, in our view, is it right, in looking at the matters as the industrial tribunal did in considering the reasonable steps taken by the employer, to look solely at what the employer does and to ask whether that constitutes the taking of reasonable steps. In our judgment, the employer who sends
a letter terminating a man’s employment summarily must show
that the employee has actually read the letter or, at any rate, had a reasonable opportunity of reading it. If the addressee of the letter, the employee, deliberately does not open it or goes away to avoid reading it he might well be debarred from saying that notice of his dismissal had not been given to him. That,
however, did not happen in this case.”
23. The same approach was adopted by the EAT (Morison J presiding) in
McMaster v Manchester Airport plc [1998] IRLR 112, another case of a dismissal letter arriving while the employee was away from home. This too was a case about
the “effective date of termination”, but for the purpose of the time limit for making
a complaint of unfair dismissal. It was common ground that any dismissal had to be communicated, whether it was summary or on notice. The tribunal commented, at para 9:
“It seems to us that, as a matter of principle, unless compelled
to take a different view, the doctrine of constructive or presumed knowledge has no place in the private rights of parties to contracts of employment, and questions as to whether a dismissal has been communicated or not, save in an evidential
sense only.”
24. When the Gisda Cyf case, referred to in para 2 above, which concerned a summary dismissal by letter, came before Bean J sitting alone in the EAT ((UKEAT 0173/08, unreported), he agreed with all that Morison J had said - it was laying down a clear and workable principle. He drew a distinction between delivery to a large
commercial concern during business hours and delivery to a person’s home.
25. Edwards v Surrey Police [1999] IRLR 456 also concerned the effective date of termination for the purpose of the time limit for bringing an unfair dismissal
complaint. But the issue was whether the employee’s resignation took effect when
the employee decided that she could not continue working for the employer or when that decision was communicated to the employer. The EAT (Morison J presiding)
held that before a contract of employment can be terminated “there must have been
communication by words, or by conduct, such as to inform the other party to the
contract that it is indeed at an end” (para 14).
26. In George v Luton Borough Council (EAT 0311/03, unreported) the EAT
(Judge Serota QC presiding), agreed that the acceptance of the employer’s
repudiatory breach had to be communicated, but held that there might be a distinction between cases of an employee giving notice and cases where an employer is seeking to terminate the employment, in which case the employee must know and
actually have the termination communicated to him. Receipt of the employee’s letter
accepting the breach by the Council was sufficient (para 14). To the same effect was Potter v RJ Temple plc (2003) UKEAT/0478/03/LA), where the EAT (Judge
Richardson presiding) held that an employee’s notice was effective when received
by his employers even if it had not been read.
27. Brown v Southall & Knight was followed in an entirely different context in
Hindle Gears Ltd v McGinty [1985] ICR 111, and this time to the employees’
disadvantage. During a strike, employers were exempt from unfair dismissal claims only if they dismissed an entire striking workforce. They were not entitled to dismiss
only those strikers who were “unwanted elements”. So if there were striking
employees who were not dismissed, or who were re-engaged within three months, those who were dismissed could bring claims. The employer sent out letters dismissing all the strikers, but two of them had left home to report for work early in the morning of the day after the letters were posted, before the letters were actually received. The Industrial Tribunal held that the two employees had been dismissed but then re-engaged that morning, with the result that the 39 striking employees could bring complaints of unfair dismissal. The EAT (Waite J presiding) held that the two employees had not been dismissed before they returned to work; therefore they had not been re-engaged that morning; and they were not part of the striking workforce on the relevant date. This was because, at p 117:
“Communication of the decision in terms which either bring it
expressly to the attention of the employee or give him at least a reasonable opportunity of learning of it is in our view
essential.”
28. Most recently, in Sandle v Adecco UK Ltd [2016] IRLR 941, the EAT (Judge
Eady QC presiding) upheld the employment tribunal’s decision that an agency
worker had not been dismissed because, although the firm to which the agency had assigned her had terminated the assignment, the agency had done nothing to communicate her dismissal:
“… dismissal does have to be communicated. Communication
might be by conduct and the conduct in question might be capable of being construed as a direct dismissal or as a repudiatory breach, but it has to be something of which the
employee was aware.” (para 41)
29. Two other employment cases were relied upon by the Trust. In London Transport Executive v Clarke [1981] ICR 355, the employee had taken unauthorised leave to go to Jamaica. After sending two letters to his home address asking for an explanation and giving an ultimatum, the employers wrote on 26 March saying that his name had been permanently removed from their books on that day. When he returned they refused to reinstate him. The majority of the Court of Appeal held that a contract of employment was not terminated until the employers had accepted the
employee’s repudiatory breach, which they did when he was dismissed on 26 March.
The issue was whether his dismissal was unfair. There was no issue as to the precise timing, or as to when the employee became aware of the contents of the letter. The most that can be said on behalf of the Trust is that the majority assumed that posting the letter was sufficient.
30. The other case is the decision of the Court of Appeal in the Gisda Cyf case: [2009] EWCA Civ 648; [2009] ICR 1408. The majority, Mummery LJ with whom Sir Paul Kennedy agreed, approved the decisions in Brown v Southall & Knight and McMaster v Manchester Airport plc, but expressly on the basis that they were
construing the statutory definition of “the effective date of termination” in section
97(1) the Employment Rights Act 1996 or its predecessor, for the purpose of unfair dismissal claims, rather than applying the law of contract; it did not follow that the correct construction of the statute was controlled by contractual considerations: para 33. Lloyd LJ dissented: in his view resort should first be had to the general law on contracts of employment. The EAT cases cited above had distinguished between those where the employee had given notice to the employer and those where the employer had given notice to the employee. In the first category were George v Luton Borough Council and Potter v RJ Temple plc (see para 26 above), where it
was held that an employee’s notice was effective when received by his employers
even if it had not been read. In the second category were all those cases where an
employer’s notice had been held only to take effect when the employee had received
and read, or had a reasonable opportunity to read, them. He took the view that the latter category of cases was wrongly decided and the same rule should apply to both.
31. In the Supreme Court, the approach of the majority was upheld. The Court emphasised that it was interpreting a statutory provision in legislation designed to
protect employee’s rights, so that “the general law of contract” should not even
provide a preliminary guide, let alone be determinative (para 37). However, Lord Kerr (giving the judgment of the Court) was careful to say that the judgment should
not be seen as an endorsement of the employer’s argument as to the effect of
common law contractual principles (para 38). The case was an unusual one, in that the employee was not represented before the Supreme Court and so there had been no argument to the contrary. For that reason, although this case is determinative of
the meaning of the “effective date of termination” in section 97(1) of the
Employment Rights Act 1996, it is of no assistance in the determination of the issue in this case.
32. The last employment case to mention is Geys v Société Générale, London Branch (see para 3 above). The Bank purported to exercise its contractual right to
terminate the employee’s employment by making a payment in lieu of notice. The
severance payment due depended on the date of termination: was it when the Bank repudiated the contract of employment, or when it made a payment in lieu of notice
into the employee’s bank account, or when, in accordance with an express term in
the contract, the employee was deemed to have received the Bank’s letter telling
him that it had exercised its right to terminate with immediate effect and made a payment in lieu of notice? The Supreme Court held that the repudiation was not effective unless and until accepted by the employee (which it was not); that the mere payment of money into a bank account was not sufficient notification to the employee that he was being dismissed with immediate effect; so that the date of termination was the date on which he was deemed to have received the letter. Apart from the repudiation point, most of the case depended upon the express terms of the contract, which included a term as to when a written notice sent by post was deemed to have been received. For present purposes the case is relevant only insofar as it stresses the need for notification of dismissal (or resignation) in clear and unambiguous terms, so that both parties know where they stand - whether or not the employee is still employed and when he ceased to be employed (paras 57-58). Baroness Hale of Richmond (with whom Lord Hope of Craighead, Lord Wilson and Lord Carnwath agreed) cited with approval, at para 56, the following passage from Crossley v Faithful & Gould Holdings Ltd [2004] ICR 1615, per Dyson LJ, at para 36:
“It seems to me that, rather than focus on the elusive concept
of necessity, it is better to recognise that, to some extent at least, the existence and scope of standardised implied terms raise questions of reasonableness, fairness and the balancing of
competing policy considerations.”
Policy
33. Both parties have placed great weight on what they see as the policy considerations favouring their solution. Mr Cavanagh QC, for the Trust, points out that, as there was no express term stating how notice was to be given and when it was to be taken to have effect, some term has to be implied into this contract. That being so, as stated in Crossley, policy questions are relevant. There should be no special rule for employment cases. There should be as much certainty and clarity as
possible. The Trust’s approach is more certain than the employee’s. Under the employee’s approach, it would not be possible for a letter giving notice to state with
certainty the date on which the employment would end. It is also fairer to give the benefit of the doubt to the sender of the letter, because there will usually be more objective evidence of when it was sent. If there are several dismissals, all will take effect on the same day, and not on different days depending on when the letter was
received. The employee’s approach does not necessarily work for the benefit of
employees, who might be keen for the employment to end. There must be the same
rule for employers and employees.34. He also argues that the Trust’s approach - delivery to the home address - is
consistent with or more favourable than many statutory provisions about notice. He
cites, in ascending order of severity, the following examples:
(1) By the Interpretation Act 1978, section 7 (replacing a provision to like effect in the Interpretation Act 1870), service of a document by post, where authorised or required, is deemed to be effected by properly addressing, pre- paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. However, in Freetown Ltd v Assethold Ltd [2012] EWCA Civ 1657; [2013] 1 WLR 701, at para 37, Rix LJ pointed out that this changed the common law, which required receipt; it introduced a rebuttable presumption; and required the sender to prove that the letter had been properly addressed, prepaid and posted.
(2) By the Law of Property Act 1925, section 196(4), notices required to be served on a lessee or mortgagor are sufficiently served if sent by post in a registered letter addressed to the person to be served by name, at his place of
abode or business, and the letter is not returned undelivered; “and that service
shall be deemed to be made at the time at which the registered letter would
in the ordinary course be delivered”.
(3) By the Misuse of Drugs Act 1971, section 29(4) certain notices sent
by registered post or recorded delivery “shall be deemed to have been
effected at the time when the letter containing it would be delivered in the
ordinary course of post” and section 7 of the 1978 Act is disapplied.
(4) By the Public Health Act 1875, section 267, notices and other
documents served by post “shall be deemed to have been served at the time
when the letter containing the same would be delivered in the ordinary course of post, and in proving such service it shall be sufficient to prove that the
notice order or other document was properly addressed and put into the post”.
35. However, as Mr Glyn QC for Mrs Haywood points out, it does not follow that any of these differing statutory provisions reflects the common law as to the term to be implied into an employment contract. Their purpose was to lay down a rule which might well be different from what would otherwise be the common law position.
36. He also cites the judgment of the Supreme Court in Gisda Cyf, at para 43:
“There is no reason to suppose that the rule in its present form
will provoke uncertainty as to its application nor is there evidence that this has been the position hitherto. The inquiry as to whether an employee read a letter of dismissal within the three months prior to making the complaint or as to the reasons for failing to do so should in most cases be capable of being contained within a short compass. It should not, as a matter of generality, occupy a significantly greater time than that required to investigate the time of posting a letter and when it
was delivered.”
37. Furthermore, if an employer wants greater certainty, he can either make express provision in the contract, or tell the employer face to face, handing over a letter at the same time if the contract stipulates notice in writing. Large numbers of employees are not sacked on a whim. The employer knows when employees are going on leave and can make arrangements to ensure that they are notified beforehand. All the notices can be stated to expire on the same specified date. There is no prohibition on giving more than the prescribed minimum period of notice. Nor is it usually necessary to give a prescribed period of notice before a particular date, as it is with notices to quit.
38. The rule established in the EAT from 1980 onwards has survived the replacement, by the Employment Rights Act 1996, of the legislation which applied in Brown and there have been several other Parliamentary opportunities to correct it should it be thought to have caused significant difficulty. It has not been confined to
the interpretation of the “effective date of termination” for the purpose of Part X of
the 1996 Act and has been applied in several different contexts. It was only in Gisda Cyf that the possibility was raised that the common law and statutory rules might be different. But it makes obvious sense for the same rule to apply to all notices given by employers to employees.
Conclusion
39. In my view the approach consistently taken by the EAT is correct, for several
reasons:
(1) The above survey of non-employment cases does not suggest that the common law rule was as clear and universal as the Trust suggests. Receipt in some form or other was always required, and arguably by a person authorised to receive it. In all the cases there was, or should have been, someone at the address to receive the letter and pass it on to the addressee. Even when statute intervened in the shape of the Interpretation Act, the presumption of receipt at the address was rebuttable. There are also passages to the effect that the notice must have been communicated or come to the mind of the addressee, albeit with some exceptions.
(2) The EAT has been consistent in its approach to notices given to employers since 1980. The EAT is an expert tribunal which must be taken to be familiar with employment practices, as well as the general merits in employment cases.
(3) This particular contract was, of course, concluded when those cases were thought to represent the general law.
(4) There is no reason to believe that that approach has caused any real difficulties in practice. For example, if large numbers of employees are being dismissed at the same time, the employer can arrange matters so that all the notices expire on the same day, even if they are received on different days.
(5) If an employer does consider that this implied term would cause problems, it is always open to the employer to make express provision in the contract, both as to the methods of giving notice and as to the time at which such notices are (rebuttably or irrebuttably) deemed to be received. Statute lays down the minimum periods which must be given but not the methods.
(6) For all the reasons given in Geys, it is very important for both the employer and the employee to know whether or not the employee still has a job. A great many things may depend upon it. This means that the employee needs to know whether and when he has been summarily dismissed or dismissed with immediate effect by a payment in lieu of notice (as was the case in Geys). This consideration is not quite as powerful in dismissals on notice, but the rule should be the same for both.
40. I would therefore dismiss this appeal. It was only on 27 April 2011 that the
letter came to the attention of Mrs Haywood and she had a reasonable opportunity
of reading it.
LADY BLACK:
41. The foundation of the Trust’s argument is that there is a common law rule
that written notice of termination of a contract is given when the notice document is
delivered to the recipient’s address, and that there is no need for the recipient to have
sight of the document or the envelope containing it, or even to be present at the time. Mrs Haywood disputes that such a common law rule exists. In order to decide who is right, it is necessary to look in some detail at a line of old authorities on the giving of notice. Lord Briggs, like Lord Justice Lewison in the Court of Appeal, concludes from it that there has been, for over two centuries, a term generally implied by law
into “relationship contracts” terminable on notice, that written notice is given when
the relevant document is duly delivered by hand or post to the address of the recipient, irrespective of whether/when the recipient actually gets the notice. Lady Hale does not consider that the old authorities establish this proposition. I agree with
Lady Hale’s judgment, and, in the light of the disagreement between her and Lord
Briggs, merely wish to set out here, in a little more detail, the reasons why, in my view, the old line of authorities are not to the effect that the Trust suggests.
42. I am indebted to Lady Hale and Lord Briggs for having introduced and analysed the authorities, albeit that their analyses differ, as I am able to build on
what they have already said (see paras 13 and 14 of Lady Hale’s judgment, and paras
84 et seq of Lord Briggs’ judgment).43. In considering the authorities, I have found it helpful to keep in mind that there are different sorts of service, increasingly personal in nature. Putting a notice document into a post box might be said to be at one end of the spectrum. This is the point at which, where the postal rule applies, an acceptance of a contractual offer would take effect, for example. However, no one has contended in this case that notice could have been given at such an early stage. At the other end of the spectrum is the communication of the contents of the document to the mind of the recipient. In between, various possibilities exist, from which I would pick out service of the notice on an agent of the intended recipient who is authorised to receive such
communications, and “personal service”. When I speak of personal service in this
context, I mean, following what it seems to me is the practice of the older authorities,
ensuring that the notice actually reaches the recipient’s hands.
44. It is also helpful to keep in mind when approaching the authorities that presumptions feature prominently in them and that presumptions come in various guises too, the most obvious distinction being between the rebuttable presumption and the irrebuttable presumption.
45. The starting point for an examination of the old authorities is Jones d Griffiths v Marsh (1791) 4 TR 464. This is the case in which a notice to quit was served on
the tenant’s maidservant at the tenant’s house, the contents being explained to her at
the time, but (as the report puts it) “there was no evidence that it ever came to the
defendant’s hands, except as above”. The tenant argued that this was not sufficient
for a notice to determine an interest in land, especially as the service had been at a house which was not the demised premises. The summary of the decision of Lord Kenyon CJ, and Buller J reads:
“Where the tenant of an estate holden by the year has a
dwelling-house at another place, the delivery of a notice to quit to his servant at the dwelling house is strong presumptive
evidence that the master received the notice.”
46. In deciding that the tenant had been served with due notice to quit, Lord Kenyon and Buller J expressed their decisions in rather different ways. The reports of their judgments are so short that it is worth setting them out in full. Lord Kenyon said at p 465:
“This is different from the cases of personal process: but even
in the case alluded to of service on the wife [of a declaration in ejectment], I do not know that it is confined to a service on her on the premises; I believe that if it be served on her in the house, it is sufficient. But in every case of the service of a notice, leaving it at the dwelling house of the party has always been deemed sufficient. So wherever the Legislature has enacted, that before a party shall be affected by any act, notice shall be given to him, and leaving that notice at his house is sufficient.
So also in the case of an attorney’s bill, or notice of a
declaration being filed: and indeed in some instances of process, leaving it at the house is sufficient; as a subpoena out of the Court of Chancery, or a quo minus out of the Exchequer. In general, the difference is between process to bring the party into contempt, and a notice of this kind; the former of which
only need be personally served on him.”
47. Buller J said at pp 465-466:
“Ex concessis personal service is not necessary in all cases.
Then what were the facts of this case? It was proved that this
notice was delivered to the tenant’s servant at the dwelling-
house of the tenant, and its contents were explained at the time; and that servant who was in the power of the defendant was not called to prove that she did not communicate the notice to her master; this was ample evidence, on which the jury would have
presumed that the notice reached the tenant.”
48. Lord Briggs takes this case as a clear statement of already settled law to the
effect that a notice left at the intended recipient’s dwelling house is valid from the
point of delivery. He would reject the argument that this was a decision about service
on the maidservant as the tenant’s agent, taking the view that the judgments turn on
the leaving of the document at the house rather than it being given to anyone there. I do not share his confidence about this, but before explaining why, I will look at the whole line of authority up to and including the important case of Tanham v Nicholson (1872) LR 5 HL 561, because later cases shed light on the issue, in my view. Lady Hale says of the main authorities in this line that they could be seen as cases concerning service upon an agent authorised to accept it (para 14). I agree that that is a fair reading of them, although all is not perfectly clear and uniform, not least because the old reports are sparing in detail, and not all the cases address specifically the issues that are of interest to us, with our 21st century perspective.
49. Although not cited to us, the next relevant case chronologically seems to me to be Doe d Buross v Lucas (1804) 5 Esp 153. The action was one of ejectment, to recover possession of premises. The brevity of the report makes it difficult to be sure of the precise facts. The tenant had died, leaving his widow as his executrix. The notice to quit was given by leaving it at the house where he had lived during his
lifetime, but there was no evidence of it having come into his widow’s hands. It was
argued that this was not a legal notice to quit, that service at the house where the tenant lived was never sufficient, and that there had to be delivery to the tenant, his wife or a servant, with (in the case of a servant) evidence that the notice came into the tenant’s hands. The plaintiff asserted, relying on Jones d Griffiths v Marsh, that
the mere service of the notice at the house was sufficient. Rejecting the plaintiff’s
argument, the Lord Chief Justice, Lord Ellenborough, said:
“that case was different from this; in that case, the notice was
delivered at the tenant’s dwelling house, and explained to the
servant. The objection was then taken, that the servant was not called, who might have accounted for the notice, and stated whether it had been delivered or not; and that not being called, it was strong presumptive evidence, that her master had received the notice, and should be left to the jury: but here there was no such evidence offered. The tenant might be turned out
of possession by a trick.”
50. From this, it seems that Lord Ellenborough considered that mere delivery at the house was not enough, and that he saw Jones v Marsh as a case of notice received by the tenant himself, because there had been no evidence to rebut the presumption that arose from the delivery of the notice to his servant.
51. Next in time is Walter v Haynes (1824) Ry & Mood 149 which is one of the few examples we were given from outside the field of residential property. An action of assumpsit was brought upon a bill of exchange. A notice of dishonour had been
posted in a letter addressed to “Mr Haynes, Bristol”. This was held not to be
sufficient proof of notice. Setting out why, Lord Abbott CJ spoke in terms which made it plain that what was required was that the letter did in fact come into the hands of the person for whom it was intended. Normally, the post was sufficiently
reliable for posting a letter to be tantamount to delivery into that person’s hands, but
the address on this communication was not sufficiently precise for that to be
presumed. Lord Abbott said at pp 149-150:
“It is, therefore, always necessary, in the latter case [of a letter
addressed generally to AB at a large town], to give some further evidence to shew that the letter did in fact come to the hands of
the person for whom it was intended.”
52. I come then to Doe d Neville v Dunbar (1826) M & M 9. This was another
notice to quit case. Two copies of the notice to quit were served at the defendant’s
house, one on the servant and the other on a lady at the house. The defendant complained that this was not good enough. His argument can be gleaned from the following summary in the report at p 11:
“It was attempted to shew that both the lady and the servant on
whom notices were served were dead; and it was argued that in that case, as the defendant would be unable to call them to prove that they did not communicate the notice to him by the [relevant date], according to the course suggested by Buller J in Jones d Griffiths v Marsh, 4 TR 464, and as the sufficiency of the notice was treated, both in that case and in Doe d Buross v Lucas, 5 Esp 153, and in Doe d Lord Bradford v Watkins, 7 East, 553, as depending on the presumption that it came to the
tenant’s hands, there would be no sufficient evidence that it did
so, to entitle the plaintiff to a verdict.”
53. An interesting feature of this passage is the assertion that the sufficiency of the notice in Jones d Griffiths v Marsh depended on the presumption that it came to
the tenant’s hands. This is in line with Lord Ellenborough’s view of it in Buross v
Lucas and, to my mind, might be taken to indicate that Jones d Griffiths v Marsh was not treated, in the 30 years or so after it was decided, to be clear and established authority that mere delivery at the address constituted notice.
54. Lord Abbott CJ, had no doubt, however, that the notice in Neville v Dunbar was sufficient. The brevity of the report makes it difficult to gain a full understanding of the reasoning. It could be read as endorsing mere delivery to the house as sufficient (as Lord Briggs reads it), but the decision might equally have been based upon the proposition that service on the servant was sufficient whether or not the notice reached the master, or upon the proposition that service on the servant raised a presumption (not rebutted on the evidence) that the master had received the notice. In order to make sense of what Lord Abbott said, it is necessary to note that, immediately after the passage I have just quoted from the argument,
there is the statement: “The proof however failed as to the servant.” It seems,
therefore, that it was not established that the servant was in fact dead, from which it followed that the defendant could have called him or her to give evidence that he or she had not communicated the notice to him, but had not done so. In that context, Lord Abbott said:
“I have no doubt that the service of the notice was sufficient.
The question does not arise here, for the servant might be called: but I have no doubt of the absolute sufficiency of the notice; were it to be held otherwise, a landlord would have no means of determining a tenancy, if his tenant happened to be absent from his house at the time when it was necessary to serve
the notice.”
55. Doe d Lord Bradford v Watkins, the third of the three cases referred to in the argument in Neville v Dunbar, seems to have concerned a notice to quit served on one of two tenants holding under a joint demise of premises. It seems that it was left to the jury to determine whether the notice had reached the other defendant, but it is not easy to get a great deal of assistance from the report.
56. Papillon v Brunton (1860) 5 H & N 518 is the next case requiring
consideration. Lord Briggs takes the view that this makes it “even clearer” that the
principle in play is not dependent upon personal delivery to an agent. It is the case
in which a notice to quit was posted by the tenant to the landlord’s agent’s place of business, that is to say the landlord’s solicitor’s chambers. It should have arrived the
same day, but the solicitor only found it when he went in the next day. It was held
to be good notice on the day of posting.57. In attempting to arrive at a proper understanding of Papillon v Brunton, it must be noted that the trial judge had left it to the jury to say whether the letter
arrived at the solicitor’s chambers on the day of posting or on the morning of the
next day, and the jury found that it arrived on the day of posting after the solicitor left, and said that they thought he ought to have had somebody there to receive it.
Pollock CB’s judgment includes the following passage at p 521:
“… we think that in the case of a notice to quit the putting it
into the post-office is sufficient, and that the party sending it is not responsible for its miscarriage. As this letter was posted in
London between nine and ten o’clock in the morning, the
probability is that it arrived immediately after the agent left his chambers. Indeed it is possible that it may have arrived in the due course of post, but by some accident. was overlooked - either not delivered by the servant to the clerk or in some way mislaid. Besides it did not appear that it was not delivered
before seven o’clock in the evening; and the jury considered
that the agent ought to have had some one in his chambers at that time. A notice so sent must be considered as having reached the agent in due time, and the same consequences must result as if he had actually been there and received it. In my opinion the finding of the jury was right, and the notice was delivered at the agent's place of business in sufficient time to inform him, if he had been there, that the tenancy was to be determined at the time specified. For these reasons I think there
ought to be no rule.”
58. Whilst this passage commences with a rather general observation, suggesting that mere posting of a notice is sufficient, that thought is not continued throughout the remainder of it. As the reasoning develops, it seems to turn, at least to some
extent, not on the mere fact of the notice arriving at the agent’s chambers, but on the
fact that it probably arrived on the day of posting and the solicitor ought to have had someone at the chambers to receive it. In highlighting the opportunity for the agent to have had the information had he arranged matters as he should have done, the approach bears some resemblance to the approach taken to termination of employment in the statutory context in cases such as Gisda Cyf, namely that the effective date of termination is when the employee reads the letter or has had a reasonable opportunity of reading it.
59. Martin B simply concurred with Pollock CB, but Bramwell B and Wilde B provided short judgments agreeing there should be no rule. It is difficult to ascertain
precisely what was of most importance to Bramwell B, although the jury’s finding
that the agent should have had someone at his chambers when the notice arrived had clearly impressed itself upon him. Wilde B said he took the same view as Bramwell B, and expressed himself in one further sentence, which might be supposed to encapsulate what had weighed particularly with him, and was as follows:
“The jury have found that the notice arrived at the agent’s place
of business at a time when someone ought to have been there
to receive it.”
60. So we come to the decision of the House of Lords in the Irish case of Tanham v Nicholson (1872), which I see as important. There is nothing to suggest that the fact that it was an Irish case makes any difference to the law applicable in relation to notices to quit, and the cases cited included familiar ones such as Jones d Griffiths v Marsh, Neville v Dunbar and Papillon v Brunton. The notice was delivered by
hand to the tenant’s house where it was given to his daughter. It was sufficient to
entitle the landlord to maintain ejectment against the father.
61. Lord Briggs interprets the case as one about agency, rather than about service
by post at the recipient’s home, but considers it to contain relevant dicta supporting
the existence of a common law rule that delivery of an “ordinary civil notice” to the
home of the intended recipient operates to transfer the risk to the recipient at that point, with the necessary corollary, I think, that it is at that point of physical delivery that the notice is given. I see the case rather differently.
62. A little background is required as to the history of the case and the arguments being advanced by the parties. The trial judge had left to the jury the question,
“Whether, in fact, the notice to quit ever reached [the tenant], or became known to
him?” The jury found it did not. The judge considered that there had still been
sufficient service in law and directed that a verdict be entered for the landlord. The matter proceeded through various levels of court to the House of Lords. The tenant conceded that he was living in the house where the notice was served and that the house was part of the demised premises, but he argued that to be sufficient, the notice had to be received by the tenant himself or by his duly appointed agent, which his daughter was not. The landlord argued that there was no rule that required personal service of a notice to sustain an ejectment and that service at the house was
sufficient. In any event, said the landlord, the tenant’s daughter and sons were agents
of the tenant and service on them was amply sufficient.
63. Although all arriving at the same result, that there had been sufficient service of the notice, their Lordships differed in their reasoning. For the Lord Chancellor, Lord Hathersley, the solution lay in agency. He introduced the problem as follows (p 567):
“The sole question in the case is an extremely short one, and it
is simply this, whether or not the delivery of a notice to quit on one who, undoubtedly, according to the evidence, was a servant of the tenant, at the house of the tenant, that house being on the demised property, is to be taken as a good and effectual service of that notice, so as to subject the person to whom it is addressed to the consequence of being ejected upon the
termination of the notice.”
64. At p 568, in a passage which is worth quoting in full, he set out his view that
if the servant is constituted an agent for receiving service of the document in
question, service on the agent is service on the principal:
“I apprehend that the real point in the case, when you come to
consider it, is this; not whether or not the person you have constituted your agent, by your line of conduct, to receive any document that may be left at your house, has performed that which is his or her duty, but whether or not you have constituted that person your agent. Because, if once you have constituted your servant your agent for the purpose of receiving such a notice, the question of fact as to whether that servant has performed his duty or not, is not one which is any longer in controversy. When once you constitute your servant your agent for that general purpose, service on that agent is service on you - he represents you for that purpose - he is your alter ego, and
service upon him becomes an effective service upon yourself.”
65. So, said the Lord Chancellor, when the law has said “in repeated cases” that
the effective service of notice on a servant at the dwelling house situated upon the demised property is a service upon the tenant, it has proceeded upon the basis that
“the law considers that servant to be an implied agent of the tenant for that particular
purpose.” The tenant could rebut that by showing that the agency was not correctly
implied on the facts, but there could be no inquiry as to whether the agent did his
duty by the tenant in dealing with the notice. Having “brought [the notice] home to
the agent of the person ... you have brought it home to the tenant himself” (p 571).
By the conclusion of his speech, the Lord Chancellor had refined the case to one
question, “namely, whether this woman was an agent of the tenant or not”. As she
was an agent qualified to receive a notice, that was an end of it.
66. Lord Westbury thought the law on the service of notices to quit to be in an unsatisfactory state. Lord Briggs has quoted (at para 91) what he said about the undue burden on a landlord deprived of the benefit of due service by things beyond
his control. Lord Westbury noted the “suggestion”, which he said was to be found
in “the judgments given by some other Judges”, that receipt of the notice by the
tenant’s servant at his dwelling house was not absolutely sufficient, but only prima
facie evidence of delivery to the master, rebuttable by evidence proving that the notice never reached him. He contrasted this with Jones d Griffiths v Marsh, where he said that Lord Kenyon CJ had laid down that in every case the service of a notice to quit by leaving it at the dwelling house of the tenant is sufficient, and with what Lord Abbott CJ had said (possibly in Neville v Dunbar, although Lord Westbury does not specify).
67. Although it is possible to interpret Lord Westbury’s apparently approving
reference to Lord Kenyon in Jones d Griffiths v Marsh as endorsing a principle that
mere delivery at the tenant’s house was sufficient, I do not think that that
interpretation withstands a reading of Lord Westbury’s speech as a whole. It will be
recalled that in Jones d Griffiths v Marsh, the notice had not just been left at the
premises, but had been served on the tenant’s maidservant, and this would have been
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