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
Phillips
)
(Instructed by Irwin
Mitchell LLP
(Birmingham)
)
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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
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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:
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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.
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The issue of law
12. 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.
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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:
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“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.”
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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
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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
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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.
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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
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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
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authorised or required, is deemed to be effected by properly addressing, prepaying 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
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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.
Page 15
(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
Page 16
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
Page 17
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 dwellinghouse 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
Page 18
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
Page 19
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
Page 20
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
Page 21
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
Page 22
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:
Page 23
“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
Page 24
premises, but had been served on the tenant’s maidservant, and this would have been
in Lord Westbury’s mind. Apart from anything else, the employment of a domestic
servant was commonplace in those days. Furthermore, it is noteworthy that Lord
Westbury’s examples of the things that might unfairly deprive the landlord of the
benefit of service commence with the wilful act of the servant or the servant’s
incapacity, although they do of course include also “any accident that might befall
the notice after it has been received in the dwelling house of the tenant”.
68. When Lord Westbury spoke of the uncertainty and doubt that had come into
the law (see the passage quoted at para 93 of Lord Briggs’ judgment), I do not think
that he was complaining that there had been a principle (whether or not derived from
Lord Kenyon) that mere physical delivery to the tenant’s address was sufficient,
which had now been put in doubt. I think what he had in mind was what he saw as
a clash between, on the one hand, Lord Kenyon and Lord Abbott, who considered
service on the tenant’s servant was conclusively sufficient, and, on the other, “some
other Judges” who held that it simply gave rise to a rebuttable presumption that the
notice had been served. It is noteworthy that, having expressed the hope that the
uncertainty and doubt could be cleared up, he did not then return to Jones d Griffiths
v Marsh and declare the principle to be that mere delivery to the premises was
enough, even though that would have been a simple way through on the facts of the
case, the notice undoubtedly having arrived at the tenant’s address. Instead, he went
on to consider what was to be made of receipt by a servant. Even then, he did not go
so far as to say that delivery to the tenant’s servant would be conclusively sufficient.
What he in fact went on to do, in the very next paragraph following his lament about
the uncertainty, was to deal with the case on the assumption that delivery to the
servant was only prima facie evidence of delivery to the master (“the lower ground”,
see p 574). He found there to be no evidence to contradict this prima facie evidence
and, indeed, all the evidence pointed to the father having knowledge of the notice.
The jury’s conclusion that the father did not know was “so utterly unwarranted by
the facts”, in Lord Westbury’s view, that it ought not to have prevented judgment
being entered for the landlord. Accordingly, he did not need to resolve the clash of
authority between Lord Kenyon and “some other Judges”, if clash it was.
69. Lord Westbury introduced his final paragraph with the view that “the matter
is left, by certain expressions used in former decisions, in a state of some
embarrassment”. Whilst he expressed the hope that the judgment in the case may
“tend to relieve cases of this kind in future”, I do not think that his own speech
provided any such relief, as he then summarised his conclusion in terms which left
open whether or not delivery to the servant was conclusive or merely gave rise to a
rebuttable presumption, saying:
“if it were open to contradiction, on the ground that it might be
proved that the tenant had no knowledge of the notice, that
Page 25
proof has not been given, but the contrary conclusion has been
in fact established.” (Emphasis supplied)
70. No relief came from Lord Colonsay either. His speech revolves around
agency. He began it by observing (p 576) that, “[i]t is held in law that notice given
to the servant of the party residing in the house is a service of notice on the master”.
He then went on to consider whether evidence had been adduced to rebut that “rule
or presumption of law”, “if the question was in a condition in which it could be
rebutted.” He found no circumstances “sufficient to rebut the legal inference that the
person to whom the notice was given, standing to the party in the relation of servant,
was not a legal agent to receive that notice” (sic, but I think the “not” is an error).
He too concluded that the judge was right to hold the notice was sufficient.
71. Two features of Tanham v Nicholson strike me as particularly significant.
First, none of their Lordships resolved the case by the simple route of holding that
delivery of the document at the tenant’s address was sufficient notice, even though
that seems to have been argued by the landlord. There was no dispute about the
arrival of the notice at the premises, so that solution would have been open to them
if delivery was all that was required and, if they had thought Jones d Griffiths v
Marsh was properly to be interpreted in that way, they could have drawn support
from what Lord Kenyon said there. But instead of taking that approach, each looked
at the implications of delivering the notice to the daughter. The Lord Chancellor was
satisfied that that was service on the tenant, because service on his agent was
tantamount to service on him. Lord Westbury and Lord Colonsay were perhaps more
generous to the tenant, allowing for the possibility that service on the servant gave
rise only to a rebuttable presumption of service on the tenant. None of the speeches
provides support for the proposition that agency is simply irrelevant in connection
with a service of a notice. Secondly, it is clear from the speeches that the law on the
service of notices to quit was thought to be in a rather unsatisfactory state, a state
which gave rise to different reasoning from each of their Lordships. This is hardly a
promising foundation for a submission that the common law has long been settled
in relation to the requirements for service of a notice and requires only that it be duly
delivered to the home of the intended recipient.
72. I need only refer to one further Victorian case, and then only for
completeness. This is the decision of the Court of Appeal in Hogg v Brooks (1885)
15 QBD 256. A lease of a shop contained a provision for the landlord to terminate
the demise by delivering written notice to the tenant or his assigns. The lessee
mortgaged the premises by way of underlease and disappeared. Written notice to
determine the tenancy was sent to him at his last known address but returned without
having reached him and he could not be found. Notice was also given to the
mortgagee and the occupier of the premises. The Court of Appeal held that the
landlord was not entitled to recover possession of the premises. The termination
clause in the lease had to be construed according to the ordinary meaning of the
Page 26
English language. There were no assigns of the tenant, so notice could only be given
by serving it on the tenant himself and it had not been served on him.
73. I need not add to what Lady Hale has said about the other non-employment
cases upon which the Trust relies (commencing at para 15 of her judgment). I share
her view of them and of what is said in the employment cases about the common
law position. In short, I do not think that it has been shown that there is a clear and
long-standing common law rule that service of what Lord Briggs describes as an
“ordinary civil notice” occurs when the notice is delivered to the recipient’s address.
In so far as any clear principle emerges at all from the older cases, it seems to me,
particularly in the light of Tanham v Nicholson, to revolve around delivery to the
recipient’s agent, who might be the recipient’s household servant, professional
agent, or (in certain circumstances, such as those in Tanham v Nicholson) family
member. In each case, the agent appears to have been someone who, as part of their
role, would be expected to take in communications of the type concerned for the
intended recipient. For the purposes of service, the agent was (to quote the Lord
Chancellor in Tanham v Nicholson, in the passage set out at para 64 above) “the
alter ego” of the intended recipient so that, as he said, “service on that agent is
service on you”. What the courts might have said had they been called upon to
consider the same questions in the modern world in which there are no longer
domestic servants, is unknown, and irrelevant. For present purposes, what matters
is that the clear common law rule for which the Trust contends does not, in my view,
emerge from the old cases.
74. My unease about the suggested general common-law rule is compounded by
the concentration within a narrow field of the cases upon which the Trust relies. It
may be that a great deal of research has been done into other areas with no relevant
result, and we have been spared the trouble of trawling through the underlying
material. However, I would have been interested to know, for example, what the
position is, and was before the Partnership Act 1890, about the service of notices
terminating a partnership, and to have seen some other examples drawn from
contractual situations other than notices relating to property. As Lord Briggs says,
relationship contracts come in many varieties.
75. Absent a common law rule of the type for which the Trust contends, I see no
reason for a term to that effect to be implied into an employment contract. Indeed,
as Lady Hale explains, there is every reason why the term implied into an
employment contract should reflect the position consistently taken by the EAT from
1980 onwards.
Page 27
LORD BRIGGS: (dissenting) (with whom Lord Lloyd-Jones agrees)
76. I would have allowed this appeal. The question is whether the term which
must be implied into a contract of employment terminable on notice so as to identify,
where necessary, the time of the giving of postal notice of termination, is that notice
is given at the time when the document is duly delivered to the employee’s home
address, or at some later time, such as the time when it actually comes to the attention
of the employee, or when the employee has had a reasonable opportunity to read it.
The question arises in this case in relation to termination “on notice”, by which I
mean termination by a document which brings the relationship to an end at a
specified date in the future, rather than immediately or, to use the jargon of the law
of employment contracts, summarily. The essence of termination on notice is that
there is a period, usually called the notice period, between the giving of the
document, also confusingly called the notice, and its taking effect.
77. The precise identification of the time when notice is given is not invariably,
or even usually, necessary in order to determine when the employment actually
terminated. This will usually be the time (almost always the date) specified in the
document. But sometimes a notice is expressed to take effect a specified number of
days or weeks after it is given, so that the date of its giving is a vital element in
determining the date of termination. Sometimes notice is given for a specified date,
but with only the contractual (or statutory) minimum notice period allowed before
it takes effect, and issues then arise as to whether notice was given in sufficient time
before it is expressed to take effect. The notice in the present case was an amalgam
of both those types, because it was expressed both to give a specific period of notice
(12 weeks), and to take effect upon a specified day in the future (15 July 2011).
78. The question is not whether any term as to the time of the giving of notice
should be implied, but rather what that term is. It is common ground that the term is
one which the law implies into a whole class of contract, rather than one which is
context specific. Nor is the question what that term should be. The task of this court
is not to fashion, for the first time, a new implied term to fit a new situation, with a
free rein to choose between available alternatives on modern policy grounds. Rather
it is to examine the common law authorities to find out what that implied term
already is. Contracts of employment determinable on notice have been around for
hundreds of years, and there must be many millions extant in the common law world
at this moment which must be taken to have had such an implied term embedded in
them from the moment when they were made. The use of the post to give such notice
has been an accepted method for well over a century, even if recent advances in
information technology may well mean that it has only a few more years of useful
life. It has not been suggested that any recent changes in the modes or efficiency of
the postal service call for some revision of the implied term, by comparison with the
term which the law has implied since Victorian times.
Page 28
79. Contracts of employment are only a sub-species of a much larger group of
what may be described as relationship contracts terminable on notice. They include
contracts between landlord and tenant, licensor and licensee, contracts of
partnership, service contracts not constituting employment, and many kinds of
business contract such as commercial agencies, distributorship agreements and
franchises. In most of them there will be provision for termination on notice, which
permits notice by post to a party’s home or business address, and the need to be able,
when the occasion requires, to ascertain the time when notice is given calls for the
law to imply a term for that purpose.
80. Nor do the particular facts of this case call for an anxious re-examination or
development of the previous law, even though the financial consequences for the
parties are, because of an unusual fact (the approach of the pension threshold on the
employee’s 50th birthday), large indeed. The essential (and sufficient) facts which
give rise to the question before the court are only that the letter containing the notice
was only duly delivered on the last available day (from the employer’s perspective)
but the employee was not at home until the following day. Absence of the recipient
from home (or from the office) on the day of delivery is a common feature of the
cases in which this question has already been addressed.
81. In my judgment there has been for over two centuries a term generally
implied by law into relationship contracts terminable on notice, namely that written
notice of termination is given when the document containing it is duly delivered, by
hand or by post, to the home (or, if appropriate, business) address of the intended
recipient, rather than, if later, when it actually comes to the recipient’s attention, or
when the recipient, absent at the time of delivery, has returned home and has had a
reasonable opportunity to read it. That term is clearly identified by the common law
authorities as the correct one. Although there has been a different approach taken to
the identification of the “effective date of termination” of employment for statutory
purposes connected mainly with the running of time for bringing proceedings for
unfair dismissal, contracts of employment are not otherwise an exception to the legal
principle applicable generally to relationship contracts, as the courts dealing with
the statutory question have been at pains to emphasise. True it is that many of the
old cases in which the common law rule has been laid down have concerned the
landlord and tenant relationship, but the reasoning in those cases is not specific to
that relationship. Nor are the consequences of the loss of a home or place of business
necessarily of a lesser order than those following from the loss of a job.
82. I would add that there are in my view sound reasons of policy why the implied
term should be as I have described, to some of which I will refer in due course. But
these do not amount even collectively to a ground for my conclusion, save in the
negative sense that the existing law is not so defective in policy terms that it needs
now to be changed. Rather, my conclusion is based simply upon an analysis of what
the reported cases show that the law already is on this question. My analysis accords
Page 29
closely with the reasoning to be found in the dissenting judgment of Lewison LJ in
the Court of Appeal.
83. I gratefully adopt Lady Hale’s summary of the facts. Although the date upon
which the termination notice was duly delivered was postponed because of the
absence of anyone at Mrs Haywood’s home to sign for recorded delivery, the helpful
intervention of Mr Crabtree in going to the sorting office and collecting it meant
that, for present purposes, it was duly delivered on 26 April, just in time for it to
expire before Mrs Haywood’s 50th birthday if giving notice is effective at the time
of due delivery. But Mrs Haywood did not return home from her holiday abroad
until the following morning, so it did not come to her attention until then, nor did
she have a reasonable opportunity of reading it before her return.
The Common Law Cases on Notices
84. I am also content largely to follow my Lady’s summary of the authorities,
although I will need to say a little more about the reasoning in some of them. The
earliest is Jones d Griffiths v Marsh (1791) 100 ER 1121. The issue in that case was
as to the validity of service of a notice to quit premises let to a tenant on a periodic
tenancy. The notice was hand-delivered to the tenant’s home (not the premises
demised by the lease) and given to the tenant’s servant, with an explanation of its
contents. Lady Hale has cited the relevant dictum of Kenyon CJ: “in every case of
the service of a notice, leaving it at the dwelling house of the party has always been
deemed sufficient”. The context shows that he was speaking in the widest possible
terms, about the services of notices generally, rather than just about notice to quit.
He gave, as examples, notices of any kind required to be served by statute, service
of an attorney’s bill, service of a declaration, service of legal process and even
service of a sub-poena. The only exception was what we would now call a penal
notice, where non-compliance might expose the recipient to imprisonment for
contempt of court, which required personal service. That was not a case about
timing, because there was no evidence that the notice to quit ever reached the tenant
himself, although Buller J was prepared to infer that it had done. Nonetheless it is
inherent in a conclusion that the notice was valid upon due delivery to the tenant’s
home that it was given then, and not at the time when it might have come to the
tenant’s attention. It is to be noted that Kenyon CJ was not purporting to decide the
point for the first time. He took it to be settled law, of the widest application to
notices required to be served.
85. I would not agree with the submission for Mrs Haywood that the case was
one about service upon an agent of the tenant, although it was given to a servant.
The judgments make no mention of agency, and service was said to be effected by
leaving the notice at the tenant’s house, rather than by giving it to anyone. In 1791
Page 30
it may be doubted whether houses generally had letter boxes, so there may have been
no alternative than to knock on the door and give the notice to someone.
86. The very short report of Doe d Buross v Lucas (1804) 5 esp 153 does seem
to suggest a different analysis from that laid down by Kenyon CJ in Griffiths v
Marsh, for the reasons set out by Lady Black in her judgment. But it is important to
bear in mind that in that case the tenant had died before the notice to quit was given,
and the tenancy had by then become vested in the deceased tenant’s widow. The
report does not indicate whether she was living at the property when the notice was
served. I would for my part be reluctant to treat the common law rule as validating
the giving of notice by delivery only to the home of a deceased former tenant.
87. With respect to Lady Black I do not consider that Walter v Haynes (1824) Ry
& M 149 is of any real assistance. That was a case in which the plaintiff sought to
prove service of a notice of dishonour of a bill of exchange by evidence only that
she had posted it, addressed to “Mr Haynes, Bristol”. It was rejected as sufficient
evidence because Bristol was a large town, which might contain any number of
residents by the name of Haynes. It is true that Abbott CJ used language about
proving that the notice had come into the hands of the intended recipient, but this
was not a case about the distinction between delivery to the person’s home, and
personal delivery into his hands. On the contrary, had there been a sufficiently
detailed address on the letter, so that it appeared to be directed to his home, proof of
posting would have been sufficient.
88. Doe d Neville v Dunbar (1826) Moot M 9; 173 ER 1062 is the earliest case
cited to us about the timing of service, again of a notice to quit. The relevant lease
required two quarters’ notice to quit. Notice to quit on the September quarter day
needed to be given by 25 March. Two copies were hand-delivered to the tenant’s
home (again, not the demised premises) on 22 March by the landlord’s attorney and
given to a servant and an otherwise unidentified lady there. But the attorney was told
that the tenant was absent and would not return home until 26 March. Nonetheless
the notice was held to have been given in good time. This case has an interesting
similarity with the present case, since Mrs Haywood had informed the Trust that she
was going abroad for a holiday, and was still away when the termination letter was
duly delivered. The very short judgment of Abbott CJ, following the Griffiths v
Marsh case, included the dictum: “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”. Again, there is no indication
that the court was treating this as a case of personal service upon an agent of the
tenant. The emphasis is all on delivery to the home of the person to be served. The
underlying theme of the judgment is to recognise that where a contract is terminable
by a period of notice, it must be interpreted in a way which makes it possible for the
person seeking to terminate to give that notice at the appropriate time, even if the
other party is absent.
Page 31
89. Lady Black notes in her judgment that both counsel and the judge referred to
a presumption of due delivery where the recipient’s agent is given the notice, and is
not called to prove that she did not inform her master in good time. But it is hard to
see how such a presumption could have operated to save the notice in that case,
because the landlord’s attorney was told that the tenant was away and would not be
returning until the day after the last available date for service. In the absence of
telephones, it is hard to see how the tenant could have been informed in good time.
However that may be, I consider that Abbott CJ was seeking to make it clear that,
regardless of any such presumption, notice was duly given, by being delivered to
the tenant’s house in good time.
90. Papillon v Brunton (1860) 5 H & N 518; 157 ER 1285 makes it even clearer
that the principle is not dependent upon personal delivery to an agent. It is also the
earliest case about postal service. Again, service of the notice to quit had to be given
by the tenant by the March quarter-day, and it was proved that it had been duly
delivered by post to the landlord’s agent’s business premises late on that day,
between six and seven o’clock in the evening, after the agent had left for the day. It
only came to his attention on the following morning. Pollock CB said that the notice
was duly delivered on the quarter-day. He said: “… 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”. It is implicit in that finding
that it was not necessary for the notice actually to have come to the agent’s attention
on that day, or for him to have been at the address at all on the date of due delivery.
In one sense this is a case about service on an agent, but the ratio is that timely
service at the business address of the agent is sufficient, regardless whether it comes
to the attention of the agent in good time. The case is therefore on all fours with
those described above, save that it related to business premises rather than to the
home of the person to be served. Furthermore Pollock CB said (during argument)
that leaving a notice at the landlord’s dwelling while he was away abroad would
have been good and therefore timely service. Baron Bramwell said that:
“if a person tells others that a particular place is his place of
business where all communications will reach him, he has no
right to impose on them the obligation of finding out whether
he sleeps at his place of business or elsewhere. I doubt whether,
in the absence of any express limitation by the agent, it is
necessary that the notice should be given within the hours of
business.”
The message to be taken from that observation, (with which Baron Martin agreed)
coupled with Baron Pollock’s observation during argument is that, if a person
nominates an address (home or business) for delivery of notices under a contract,
without limiting the time when a notice may be delivered there, they take the risk
that it arrives when they (or their agent) are not actually there. That which is true
Page 32
about the time of day is in my judgment equally applicable to any longer period of
time. For as long as the intended recipient holds out an address as the place to which
to deliver a notice, then that person takes the risk that, at the time of delivery, there
will be no-one there to read it. Applied to the present case, Mrs Haywood knew that
she planned to be away from home on a holiday at a time when her employers might
wish to terminate her employment by notice. She could have supplied them with an
alternative means (or place) of delivery of notice to her while away, such as the
address of her hotel or her email address, but she did not. Her notice period was a
long one, and it is not therefore at all surprising that she did not do so, and certainly
not a matter for criticism. However long her holiday, she would be back home to
read her incoming mail long before her employment actually ended. But her address
remained the place at which such a notice could be delivered, even if she might not
be there to receive it.
91. The question reached the House of Lords in Tanham v Nicholson (1872) LR
5 HL 561 on an Irish appeal. It was about personal service of a landlord’s notice to
quit upon an agent of the tenant at the tenant’s home, which formed part of the
demised premises. The agent then destroyed it, so that the tenant never received it.
It was therefore a case about agency, rather than merely service by post at the
recipient’s home. Nonetheless there are some relevant dicta. Lord Westbury said:
“If the landlord has once done that which the law throws upon
him the obligation to do, his rights consequent upon having
performed that legal duty ought not to be affected in any
manner whatever by that which is done by his antagonist, upon
whom the notice has been served. It would be an idle thing to
say that a landlord serving a notice in due manner according to
law, is to be deprived of the benefit of what he has done by the
wilful act of the servant of the tenant, or by the incapacity of
that servant, or by any accident that may befall the notice after
it has been received in the dwelling house of the tenant on
whom it was served.” (my emphasis)
92. Later, commenting on the Jones v Marsh case, he continued:
“Lord Kenyon lays it down as beyond the possibility of dispute
that in every case the service of a notice by leaving it at the
dwelling-house of the tenant has always been deemed
sufficient. But he qualifies that by explaining that he speaks of
notices affecting property, as notices to quit, and not those
notices which are intended to bring an individual within
personal contempt. Those may require personal service. The
Page 33
other, the ordinary civil notice (if I may so call it) is abundantly
satisfied if it be left at the dwelling-house of the party.”
Again, the generality of this dictum, as applicable to “the ordinary civil notice” is
significant. It is apparent that neither Kenyon CJ nor Lord Westbury were confining
their analysis to landlord and tenant cases. In their view, every kind of notice not
requiring personal service such as contempt proceedings, falls within the principle
that due delivery to the recipient’s home is sufficient. I have no doubt that they
would have regarded a notice to terminate an employment as an ordinary civil
notice.
93. Lord Westbury concluded:
“I shall be glad, therefore, if we can relieve the law from a
degree of uncertainty and doubt brought into it, contrary to all
principle, and if we can, in justice to the landlord, relieve him
from having an act done by him, which act satisfies the
obligation of the law, nullified and rendered of no effect by
circumstances which have happened altogether after the
delivery of his notice, and in the house of the tenant or under
the control of the tenant, with which the landlord has no
concern whatever.”
In my judgment these dicta reinforce what appears from the earlier cases, namely
that from the moment when an ordinary civil notice is duly delivered to the home
(or office) of the intended recipient, the law allocates the risk of mishap thereafter
to the recipient. Those risks include destruction of the notice before it comes to the
attention of the recipient, but also the risk (exemplified by the Neville v Dunbar and
Papillon v Brunton cases) that it will not come to the attention of the intended
recipient until after the due date for service because he or she is away from home.
This is because the obligation on a person to give such a notice must be one which
can be effectively discharged by taking steps available to that person, without the
effectiveness of those steps being undermined by matters within the control of the
intended recipient.
94. A recurrent theme in the speeches of both the Lord Chancellor and Lord
Westbury is that, to the extent that the dicta originating with Buller J in Jones v
Marsh and Lord Ellenborough in Buross v Lucas might suggest that delivery to the
recipient’s home or agent might only raise a rebuttable presumption of due delivery,
they were wrong. In respectful disagreement with Lady Black, I do not read their
concentration upon agency, or any part of what Lord Westbury said about what he
called “the lower ground” to represent a stepping back from their firm adherence to
Page 34
what Kenyon CJ said in Jones v Marsh, or what Abbott CJ said in Neville v Dunbar
as representing the high ground of principle which they sought trenchantly to affirm.
They focussed upon agency, and upon the “lower ground” only because that was the
way in which the case had mainly been argued. I agree that with Lady Black that
Lord Colonsay appears to have confined himself to the lower ground.
95. Lady Black refers to Hogg v Brooks (1885) 15 QBD 256. The case may have
turned upon an unusually drafted break clause in a lease. In any event none of the
authorities cited to us are referred to in the brief judgment of Brett MR. His
conclusion appears to have been that, for as long as the tenant remained untraceable,
the break clause in the lease simply could not be activated at all. I venture to doubt
whether that very uncommercial result, derived from a literalist reading of the
clause, so as to exclude service either upon the demised premises, or upon the last
known residence of the tenant, would be followed today.
96. I agree with Lady Hale that Stidolph v American School in London
Educational Trust Ltd [1969] 2 P & CR 802 is not of decisive force, because it was
not suggested that the intended recipient was not at home when the relevant statutory
notice arrived by post. But I do not regard the fact that, in that and other cases, the
requisite formalities for giving notice are statutory, means that the cases can be
ignored. In every case the question is: what duty or obligation by way of service or
delivery is imposed upon the person required to give notice? Once that duty has been
performed, matters which then affect the question whether or when the notice
actually comes to the attention of the intended recipient are for the risk of the
recipient. In the present case Mrs Haywood does not suggest that postal delivery to
her home was not a permitted method of giving notice of termination.
97. The Brimnes, Tenax Steamship Co Ltd v The Brimnes (Owners) [1975] 1 QB
929, CA was a case about the summary termination, by telex, of a charterparty by
the owner upon breach by the charterer. It was not about termination on notice. The
dicta cited by Lady Hale recognise the impracticability in that context of an implied
term that the communication of termination be timed to take effect only upon the
telex actually being read, or coming to the attention of a responsible employee.
Beyond that the case offers little assistance.
98. In my judgment the Trust was right to place emphasis in its submissions upon
the wide range of statutory provisions which appear to be formulated upon an
assumption that service of what may loosely be described as ordinary civil notices
is completed upon delivery to the intended recipient’s address, regardless when, or
even whether, the contents thereafter come to the attention of the recipient. They
include section 7 of the Interpretation Act 1978, section 196 of the Law of Property
Act 1925, section 1147 of the Companies Act 2006, section 29 of the Misuse of
Drugs Act 1971, section 267 of the Public Health Act 1875 and Part 6 of the Civil
Page 35
Procedure Rules. All of them provide for the service or giving of notices by post to
the intended recipient’s address. None of them require the notices to be brought to
the attention of the recipient, or postpone the effective date of service or delivery
until an absent intended recipient has returned home. Some of them provide for a
rebuttable presumption that the notice is deemed to be delivered on a specified date
after posting, but the presumption is as to the date of due delivery (sometimes
described as receipt), not the date when the notice comes to the attention of the
intended recipient. That is why, in the Stidolph case, Edmund Davies LJ said that
the relevant statutory presumption of due receipt would be undermined if the
recipient could, while admitting receipt, still challenge the notice on the basis that
its contents had not actually come to his attention. To much the same effect is the
dictum of Carnwath LJ in Wilderbrook Ltd v Olowu [2005] EWCA Civ 1361; [2006]
2 P & CR 4, cited by Lady Hale. While I agree that cases about statutory provisions
for service of notices by post do not directly impinge upon the construction of an
employment contract to which no such provision applies, they are of such wide
application to ordinary civil notices that they can fairly be said to reflect settled
common law, from the earlier cases which I have described, to the effect that if
postal or other delivery to the recipient’s home is an authorised method of giving
notice, it is achieved once the notice is actually delivered, regardless of whether the
intended recipient is actually at home, and regardless of what may thereafter happen
to it when it gets there, such as being burned by an agent or eaten by the dog.
99. Like Lewison LJ, and in respectful disagreement with Arden LJ, I do not read
Freetown Ltd v Assethold Ltd [2012] EWCA Civ 1657; [2013] 1 WLR 701 as an
authority to the contrary. At para 37, Rix LJ speaks of the common law as requiring
proof of receipt, whereas the Interpretation Act deemed receipt from proof of
posting. But he did not thereby mean that the common law required it to be shown
that the document had actually come to the attention of the recipient, merely that it
had been duly delivered at the recipient’s address. This is apparent from his
description of the facts, at para 3. It was a case where the answer to the question
whether a statutory appeal had been issued in time turned upon the time-lag between
when it was posted and when it arrived, not between when it arrived and when its
contents first came to a person’s attention.
100. The essential difference between my analysis of the common law cases and
that of Lady Hale and Lady Black is that they treat them all as at least consistent
with the theory that delivery to an agent is as good as delivery to the principal, in
the eyes of the law. I agree that this theory is capable of being identified as one of
the strands by which those cases where delivery was made on time to an agent of
the intended recipient at the principal’s home can be analysed. But it does not
address the cases, such as Papillon v Brunton, where there was no-one at the
specified (business) address at the relevant time. Furthermore, if the underlying
principle is that delivery is complete only when there is actual communication to the
intended recipient or a reasonable opportunity to read the contents of the notice, the
Page 36
agency theory fails to explain those cases, such as Neville v Dunbar, where the agent
could not possibly have communicated the contents of the notice to the intended
recipient in sufficient time, or those where, on the facts found, there was no such
communication, such as Tanham v Nicholson. The agency theory is simply not
supportive of the supposed principle. Rather, it supports the concept of the allocation
of risk, where delivery either to the address supplied by the intended recipient, or to
the recipient’s agent, transfers to the recipient the risk as to the consequences which
then ensue, including the consequences of any delay before it reaches the hands of
the recipient. Nor does the theory that the agency analysis was what mattered
address the trenchant wording of the senior judges, which constantly asserts that
delivery to the relevant home or business address is sufficient.
101. In days when homes were (at least among the moneyed classes who could
afford to litigate) usually staffed even where their resident owners were away, there
may not have appeared to be much practical difference between the transfer of risk
when the notice was delivered to the intended recipient’s home (or business)
address, and when it was put into the hands of an agent. But the leading judgments
are careful to state that either will do, and the typical modern case where a home
address is empty when the owner is away makes the delivery to the address
alternative more important than it may once have been.
The Employment Cases
102. Turning to cases about employment there is, as Lady Hale observes, very
little about the common law as to termination on notice. There is however a
significant amount of authority about the requirements for summary termination. In
my judgment, they say almost nothing about the requirements for termination on
notice. Summary termination means that the employment relationship comes to an
abrupt end, with immediate consequences including but not limited to the running
of a short limitation period for the bringing of unfair dismissal proceedings. It is an
exceptional process, whereas termination on notice is the normal agreed way in
which (subject to statutory consequences about unfairness or discrimination) the
contract may be terminated, usually by either side. Summary termination may be a
right conferred upon the employer by express contractual term, in specified
circumstances usually involving serious breach of contract by the employee. It may
just consist of the acceptance by one party of a repudiatory breach by the other as
putting an immediate end to the contract.
103. It is therefore no surprise to find dicta in some (although not all) of the
authorities on summary termination (usually called dismissal) to the effect that
actual communication to the employee is necessary. By contrast termination on
notice always involves a period thereafter while the employment relationship
continues. That period may be short or long, but will usually include sufficient time
Page 37
for a delay between the date of delivery of the notice and the date when it comes to
the attention of the employee to be accommodated, so that the employee still knows
about the termination well before it happens, even if that period may be shorter than
the full contractual or statutory notice period.
104. The rules which the common law has developed over centuries about the
giving of ordinary civil notices represent a compromise between the reasonable need
for the givers of the notice to be able to exercise the right triggered by the notice, at
a time of their choosing, without being hindered by uncertainties about what happens
to the document containing the notice after they have parted with it, and the need of
the recipients to receive the contents of the notice at a place where it is likely to
come to their attention within a reasonable time. Thus the common law has not (as
it did in relation to acceptance of a contractual offer) treated mere posting as
sufficient. Although posting raises a presumption of due delivery, it remains open
to the intended recipient to prove that the notice document never arrived. Due
delivery to the recipient’s home (or office) marks the point where the risk of mishap
passes from the sender to the recipient. There is no reason why the law should
automatically apply this time-honoured compromise to the more draconian and
immediate process of summary termination. Nor by the same token is there any basis
to read the cases about summary termination as saying anything about the
requirements for valid termination on notice.
105. Brown v Southall & Knight [1980] ICR 617 was a case about summary
dismissal. The question was whether the date of delivery of the letter summarily
dismissing the employee was the effective date of termination for statutory purposes
connected with the period of his continuous employment, or the slightly later date
when the employee returned home and read it. None of the cases about the
requirements of a notice were cited to the EAT. This is hardly surprising, because it
was simply not a case about termination on notice. Had it been, the time lag between
delivery and reading the notice would not have mattered, because neither event
would have terminated the employment there and then. The passage in the judgment
of Slynn J cited by Lady Hale confines his analysis to summary termination in
express terms. He says:
“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 …”
106. The next in time is London Transport Executive v Clarke [1981] ICR 355,
which was about the requirements for the effective communication by the employer
of its election to treat a repudiatory breach by the employee as having terminated
the contract; ie summary termination. This was held to have been achieved on the
date when a letter to that effect was delivered by post to the employee’s home
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address, even though he was not at home. The employee, who had been abroad
without leave, returned home and read the letter about three weeks later. It is fair
comment that the date issue was not critical to the outcome, but the Court of Appeal
appear to have regarded it as axiomatic that the communication of the acceptance of
the repudiation was effectively achieved by, and at the time of, the delivery of the
letter to the employee’s home when he was not there. The Brown case was cited, but
not referred to in the judgments.
107. The EAT applied a slightly more nuanced approach to the requirements for
communication of summary termination in Hindle Gears v McGinty [1985] ICR
111, which was a case about the attempted summary dismissal of an entire group of
striking workers, by letters to all their homes. Two workers decided to return to work
before the letters arrived, so they had no opportunity to read them before they arrived
for work. The question was whether they had been dismissed and then re-engaged
on arrival at work, or not dismissed before they resumed work. Following and
developing the decision in the Brown case, Waite J said that the requirement in a
summary termination case for the communication of the dismissal to the employee
meant that the letter had either to have been read by the employee, or that the
employee had had a reasonable opportunity to read it. Again, it was not a case about
termination by notice, and none of the cases about the requisites of an ordinary civil
notice were, or needed to be, cited.
108. McMaster v Manchester Airport plc [1998] IRLR 112 was also a case about
summary dismissal. That much was common ground. It is true that the requirement
for communication to the employee, for the purpose of determining the effective
date of communication, was treated as applying both to summary dismissal and
dismissal on notice, but this was again common ground. The only case referred to
in the judgment was Brown v Southall & Knight. The report does not show whether
any other cases were cited, but it looks most unlikely (bearing in mind the common
ground) that the cases on the requirements of an ordinary civil notice were cited.
The dictum of Morison J (at para 9) that constructive or presumed knowledge has
no place in private rights under employment contracts may be right or wrong, but it
has nothing to do with the requirements of a valid notice. Validity upon due delivery
does not depend on any kind of knowledge on the part of the intended recipient. It
is simply a good notice upon due delivery, just as is a posted acceptance of an offer,
even if never delivered or received.
109. Edwards v Surrey Police [1999] IRLR 456 was not (save in a statutory sense
about constructive unfair dismissal) about a dismissal at all. Rather, it was about
summary resignation. The issue was whether the employee’s employment had an
effective date of termination when she decided to resign and wrote a letter to her
employer saying so, (as had been held at first instance), or when the letter of
resignation reached the employer (as the EAT held). There neither was, nor needed
to be, consideration of the requirements of a valid notice, as between the due
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delivery and the reading of the letter. On either basis, the effective date was within
the period for the bringing of her claim for constructive unfair dismissal.
110. The next case, George v Luton Borough Council (2003) EAT/0311/03 is also
about summary termination by resignation. The employee gave notice by letter dated
30 July 2002 that she was resigning with effect from 31 July, complaining of
constructive dismissal. It reached the offices of the employer on 1 August, but was
not read by anyone in authority there until 2 August. She commenced proceedings
for constructive unfair dismissal only on 1 November. The EAT held that the letter
was to be construed as an acceptance of repudiation by the employer, not as a 28
day contractual notice of termination. The case offers no assistance therefore on the
question as to the requirements or effective date of a notice of termination. The
Brown, McMaster and Edwards cases were all cited, and it was accepted that
summary termination by the employer required communication to the employee.
But the EAT held that a summary resignation letter from the employee took effect
upon delivery to a corporate employer, rather than upon its being read by someone
in authority. None of the cases about ordinary civil notices were cited, or relevant.
111. Potter v RJ Temple plc (2003) UKEAT/0478/03 was yet another case about
an employee’s acceptance of repudiation by the employer as putting an immediate
end to the contract. The acceptance was faxed to the employer, and arrived at 8.21
pm on 13 September 2002, but was read only on the following day at the earliest.
The employee’s application for constructive unfair dismissal was out of time if the
faxed letter took effect upon due delivery. Although it was not a case about
termination by notice, both the facts and the outcome bear a real similarity with
Papillon v Brunton, although neither that case or any of the others on ordinary civil
notices were cited. HHJ Richardson took it as read that termination by the
acceptance of a repudiation needed to be communicated, but concluded that the need
for certainty as to the effective date of termination for statutory purposes meant that
communication should be taken to be achieved upon due delivery of the letter, rather
than upon its being read, even though the letter arrived after office hours.
112. The developing jurisprudence in the EAT about the effective date of
termination by an employer was approved in the Court of Appeal by majority and
by this court unanimously in Gisda Cyf v Barratt [2009] ICR 1408 and [2010] 4 All
ER 851. It was again a case about summary dismissal rather than dismissal on notice.
Once effective, it brought about the immediate termination of the contract. The
dismissal followed disciplinary proceedings against the employee. The letter was
posted on 29 November 2006, delivered to the employee’s home, while she was
away visiting a relative, on 30 November, and read by her on the day after her return,
on 4 December. The timeliness of her subsequent proceedings for unfair dismissal
depended upon the effective date of termination being on or after 2 December. It
was held that the effective date of termination was 4 December, when the employee
read the letter. Both the majority in the Court of Appeal and this court were at pains
Page 40
to limit their reasoning to the statutory meaning of the effective date of termination,
rather than, if different, to the ordinary common law of contract as applied to
employment contracts which, it had been argued, pointed to the date of due delivery,
even in cases of summary termination. The essential reasoning was that it would be
wrong, in construing a statutory term in legislation for employee protection, to
conclude that a short limitation period for bringing a claim should start running
before the employee had learned, or had a reasonable opportunity to find out, that
her employment had been terminated: see per Lord Kerr, giving the judgment of the
Supreme Court, at paras 34-37.
113. The phrase “effective date of termination” defined in section 97(1) of the
Employment Rights Act 1996 contains separate formulae, in separate sub-sections,
for termination on notice, and termination without notice. For termination on notice
it is the day upon which the notice expires. For termination without notice it is the
date upon which the termination takes effect. The Gisda Cyf, Brown and McMaster
cases were all about the second of those formulae.
114. The only considered judicial view in Gisda Cyf about what was the relevant
law of contract for the purpose of determining when summary dismissal by letter to
the employee’s home took effect is to be found in the dissenting judgment of Lloyd
LJ in the Court of Appeal. He considered that it was the date of due delivery rather
than the date (if later) when the letter was or reasonably could have been read. The
majority in the Court of Appeal did not express a view on the point, and nor did this
court, not least because, by then, the employee was unrepresented. In both courts,
the contractual analysis was, in the end, held to be irrelevant. But the case does make
clear that the Brown and McMaster line of cases in the EAT about the effective date
of termination are about statutory construction, not the common law about the
termination of contracts. They are not even about the statutory meaning of effective
date of termination when the contract is terminated on notice, rather than summarily.
Bearing in mind that the effective date in a notice case is not until the notice expires,
which may be weeks after it is delivered or read, it is by no means obvious that the
same answer to the question about delivery or reading of the notice would follow
from the analysis of the courts’ reasoning in relation to summary termination. I am
content to leave that question to be answered on an occasion when it needs to be (if
it ever arises).
115. I agree with Lady Hale’s reasons for not finding this court’s decision in Geys
v Société Générale, London Branch [2012] UKSC 63; [2013] 1 AC 523 of
significant assistance. It was about the ordinary common law of contract, but it was
specifically about two types of alleged summary termination, one by repudiatory
breach and the other by the making of a payment in lieu of notice. Any issue about
a time-lag between the due delivery and reading of a notice of dismissal was dealt
with by express term.
Page 41
116. Likewise I have not found significant assistance from the latest dismissal case
in the EAT, namely Sandle v Adecco UK Ltd [2016] IRLR 941. The question was
whether the employee had been summarily dismissed by inaction on the part of the
employer. The EAT held that there had been no dismissal at all, because nothing
relevant had been communicated to the employee. The requirement in the passage
cited by Lady Hale that there be something of which the employee was made aware
does not (and was not intended to) resolve the question whether communication by
written notice is effective upon due delivery.
117. Standing back and reviewing the employment cases as a whole, the following
points stand out. First, none of them was about termination on notice, by the
employer or the employee. They were all about summary termination. Secondly,
and unsurprisingly, none of the long standing common law authorities about the
requisites of an ordinary civil notice, reviewed at the beginning of this judgment,
were even cited, although there was some, inconclusive, consideration of the
common law principles in the Gisda Cyf case in the Court of Appeal, broadly
supportive of due delivery as the relevant date. Thirdly, the only authoritative
guidance that a summary termination document is not effective upon due delivery,
but only when read, or after a reasonable opportunity for reading, relates to the
statutory context about the effective date of termination, in which the potential for a
different answer under the common law is treated as irrelevant. In the non-statutory
summary termination context, the cases go either way. Fourthly, the policy reasons
for rejecting due delivery in the statutory context are firmly linked to the fact that
summary termination has immediate effect, in particular by starting the running of
a short limitation period, which is simply not a consequence of the due delivery of
a notice of termination taking effect at a future date. Finally, the only statement in
all the employment cases (in McMaster) that a termination on notice is given only
when it is read, rather than when delivered, merely recorded the parties’ agreement
about the matter, rather than even an obiter dictum by the court.
Policy
118. I have already expressed my view that policy plays a subordinate role where
there is already an established common law principle which supplies the standard
implied term. I have described the common law principle that an ordinary notice
takes effect when it is duly delivered to the recipient’s address as a compromise
which strikes a fair balance in relation to the risks to both parties of the notice not
immediately reaching the recipient, and which preserves as far as possible the
reasonable requirements of both the giver and the recipient. The time honoured
implied term therefore has a sensible and even-handed policy objective behind it.
119. Some of its advantages benefit both parties equally. The foremost is certainty.
Both the employer and the employee need to know when the employment will
Page 42
actually terminate, even where (as often happens) the notice expresses an expiry
date by reference to a stated period from receipt. The employee needs to know from
what future date to seek to put in place alternative employment, or state assistance
in lieu of wages. An employee giving the notice to their employer may well wish to
fix precisely the date from which he or she is free to begin employment, for example,
with a competitor, free from restrictions under the current contract. The employer
giving or receiving notice will wish to know precisely from which date to recruit,
train and put in place a replacement employee. Neither will wish to be subject to
uncertainties about matters known only to the other party, such as when after due
delivery the notice came to the attention of the intended recipient. Neither will wish
to have to become embroiled in a dispute about whether the other party deliberately
absented themselves from home or office in order to make the giving of timely
notice more difficult or even impossible.
120. Counsel for Mrs Haywood submitted that it was a policy advantage to treat
both the statutory test for effective date of termination and the common law rule
about the taking effect of a notice of termination in the same way. I disagree. First,
it ignores the fact that all the cases on effective date relate to summary termination
rather than termination on notice, and that the policy considerations applicable to
each are not the same. Secondly, to treat the statute as amending what I consider to
be settled common law about termination on notice is to give it an effect well beyond
that which it has been held to have, and beyond that which is needed to preserve to
the employee the full benefit of the short limitation period. It was submitted further
that the employment world has been proceeding since the decision in the Brown on
the assumption that it reflects the common law, so that parties to employment
contracts currently in force must be taken as making that assumption. Again, I
disagree. In my judgment the absence from the Gisda Cyf case of any judicial
challenge to Lloyd LJ’s analysis of the position at common law makes this
submission untenable.
121. Where, as here, the development of a standard implied term at common law
may be perceived to be based upon a compromise about the fair allocation of risk,
as I have described, it is inherently unlikely that all policy considerations will point
in the same direction. There will always be reasons for, and against, drawing the
compromise line there, or elsewhere. In the present circumstances I am satisfied that
there is a sufficient basis in policy for drawing the line where it has for so long been
drawn, unless matters have so changed over time to require it now to be moved. True
it is that, in the modern world, few private homes are staffed in the way in which a
few were in the 18th and 19th centuries. It may be that people now travel away from
home, and certainly abroad, more than they used to. It may be that the post is a little
less reliable than it may once have been. But it has not been submitted that these
changes make a critical difference. Even if they are significant in relation to post,
this will be a passing phase. Before long it is likely that most notices of this type
Page 43
will be sent electronically, accessible by the intended recipient anywhere in the
world with a wi-fi signal, via mobile phone or tablet.
The Judgments in the Court of Appeal
122. It will already be apparent that I find myself in broad agreement with the
reasoning of Lewison LJ in his dissenting judgment. As for the majority, Proudman
J held that nothing less than actual communication to the employee would suffice:
see para 70(a). Arden LJ held that the essential requirement was receipt by the
employee (regardless whether she opened it and read its contents) but that due
delivery to the employee’s home was not sufficient for receipt, until at least she
actually saw the envelope containing the letter: see para 149. These are but crude
summaries of two carefully reasoned judgments, but those conclusions are in my
judgment each inconsistent with the common law principles applicable to the
delivery of ordinary civil notices, including employment notices, as I have sought
to explain.
123. Lady Hale’s formulation is slightly different again. She prefers the formula
that notice is given at the earlier of the times when it is read, or when the employee
has had sufficient time to do so. It is to be noted that, if departure is to be made from
the long established principle that notice is given when it is duly delivered, no
precise consensus has emerged as to the alternative, for the foundation of what we
all recognise should be a standard implied term.