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||Neutral Citation Number:  EWCA Civ 153
||Case No: Appeal number A3/2015/2286
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HHJ RAESIDE QC
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN DBE
LORD JUSTICE LEWISON
MRS JUSTICE PROUDMAN DBE
|| NEWCASTLE UPON TYNE NHS FOUNDATION TRUST
||- and -
Holly Stout (instructed by Samuel Phillips) for the Appellant
Tom Brown (instructed by Irwin Mitchell LLP) for the Respondent
Hearing dates: 14 and 15 February 2017
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
Mrs Justice Proudman :
- This an appeal against the order dated 27 May 2015 of Judge Raeside QC, sitting as a Judge of the High Court of Justice, Chancery Division, at the Leeds District Registry. By his order, the judge,
(a) declared that the appellant employed the respondent up to and including 20 July 2011 (her 50th birthday),
(b) Ordered the appellant to ensure that the respondent would be paid a pension under Regulation E3 National Health Service ("NHS") Regulations 1995, pay her the arrears of that pension and the five days pay which it had not previously paid,
(c) Stayed the order pending this court's determination of permission to appeal,
(d) Ordered the appellant to pay the appellant's reasonable costs, the costs of the hearing on 14 May 2015 and make a £45,000 interim payment, and
(e) Refused the appellant's application for permission to appeal.
- On 5 November 2015 Patten LJ granted permission to appeal generally and stayed the order until this court had decided the appeal.
- The respondent was employed as an associate director of Business Development (Band 8d) by Newcastle Primary Care NHS Trust ("PCT") from 1 November 2008 to July 2011. Newcastle and North Tyneside Primary Care Trusts had a joint board, of which Mrs Haywood was a member. Her role was business development for community services in both Newcastle and North Tyneside Primary Care Trusts which had a joint budget of £80m. The value of the business finally transferred was £54m. Hers was the only non-clinical Band 8d post transferred to the appellant. She was paid £84,446 per annum, the top of the pay scale for Band 8d posts.
- Section 1 of the Statement of Principal Terms and Conditions of Employment (to which I shall refer as the respondent's contract. There was also a service handbook of NHS terms and conditions which is irrelevant to this appeal) provided in section 1 that the minimum notice period from the respondent or the appellant was 12 weeks. There was apparently a break in the respondent's continuous employment so that her statutory notice entitlement would have been only three weeks, but it is accepted for present purposes that her contractual notice entitlement was 12 weeks.
- Following a merger of NHS bodies the respondent's contract was transferred to the appellant on 1 April 2011. Thus the appellant was not the original party contracting as employer. The respondent was informed by letter that she was at risk of redundancy. On 13 April 2011 she met two representatives of the appellant, Mrs Angela Dragone and Miss Deirdre Fawcett, at which, among other matters,
(a) The Organisational Change Policy was discussed,
(b) The fact that no final decision on redundancy had been taken was stated,
(c) Two alternative Directorate Management jobs were apparently offered to the respondent, both of which she initially rejected, because they were banded at 8c, because she did not report directly to the board, because the breadth of responsibility and accountability which her then current role had was, in the respondent's view, not comparable and because she would suffer a drop in pay, and accordingly, pension.
(d) The respondent said that she would be entitled to an NHS pension of about £200,000 if she was made redundant after 20 July 2011,
(e) It was accepted that the respondent was entitled to 12 weeks' notice,
(f) The respondent said that she was on annual leave from 19 April until 3 (or, according to  of her witness statement dated 21 August 2013) 5 May 2011. She also said in her witness statement that she said that she would be on holiday in Egypt from 19-26 April 2011 (but this does not appear to have been the case),
(g) The respondent accepted that her post was redundant,
(h) The respondent asked that no decision would be made in her absence but Miss Fawcett, and by implication Mrs Dragone, did not agree to this.
- Following this meeting the respondent began sick leave on 13 April 2011, brought on apparently by the stress of the meeting, and commenced annual leave on 18 April. She flew to Egypt on 19 April for one week and was due to return on 26 April but, in accordance with a letter from Thomas Cook, she actually arrived back on 27 April 2011. She remained on sick leave until 20 May 2011.
- The respondent was made redundant. The principal issue for the judge was whether she received 12 weeks' notice of dismissal before her 50th birthday on 20 July 2011 and therefore received a lower pension than she would have done if the notice period had expired on or after her 50th birthday. The appellant calculated her notice period as expiring on 15 July 2011, whereas the respondent and the judge thought that her notice did not expire until after her 50th birthday so that she was entitled to a higher pension.
- The reason for the judge's decision was that notice had only been given once the respondent had actually read a letter of dismissal on 27 April 2011 so that the contents were communicated to her.
- On 20 April 2011 the appellant sent three letters, one by recorded delivery, wrongly dated 21 April 2011, a slip being left at the respondent's house on 21 April 2011 (see  of the judgment referring to [10.4] of the Defence which pleads 22 April 2011 (a date which they got from the appellant's solicitors) and contrast [37 (iii) and (iv)] where the judge finds as a fact that the slip was left on 21 April 2011. The respondent's father in law Sidney Crabtree collected the recorded delivery letter from the sorting office on 26 April 2011 and left it for the respondent. There was a letter (apparently: see  of Mrs Dragone's witness statement) in the same terms by normal post, although the judge does not make any findings about whether or when this was received. There was also a letter sent by email to the respondent's husband's email address at 10.55 am. The communications all purported to terminate the respondent's contract with 12 weeks' notice terminating on 15 July 2011, placing the respondent on garden leave. 21 April 2011 to 15 July 2011 is 12 weeks plus one day. 20 April 2011 is 12 weeks plus two days. It is possible that one takes the respondent's 50th birthday, 20th July 2011, working backwards from there, to see whether a notice was properly served which means that the notice would have to have been served by 26 April 2011. The judge found that there were only two communications, presumably (see below) the email and the recorded delivery letter.
- The email is important, says the respondent, but (a) it was sent to the respondent's husband's address, (b) the appellant provided a postal address, (c) the respondent had not given the appellant permission to send communications to her at this address, although she had herself used it, (d) the respondent's husband did not access it until after the recorded delivery letter was read and (importantly) (e) we were not referred to any authority about the use of emails other than Chitty on the Law of Contracts Vol 1, which says, in the context of offer and acceptance, that is to say, contract formation, "Therefore, in general, the time of acceptance by email should be when the email is received by the offeror" and (after discussion), "an email acceptance should be treated as having been received when it arrives on the offeror's email server."
- It is not entirely clear from the judge's judgment which letter the respondent read, the letter sent by ordinary post or the recorded delivery letter (or indeed which are the two communications that he found in [37 (xii)] of the judgment to have been received by the respondent), although I say "entirely" because it looks as if he was referring to the email and the recorded delivery letter (see [37 (xv] and (xvi)) but something arrived at the respondent's home by 26 April 2011. The respondent says that she opened the recorded delivery letter at 8.30 am on 27 April 2011. The respondent's husband did not read the emailed letter until 10.14 am on 27 April 2011.
- Thus a question for the judge was whether posting the letter was enough by itself ("the postal rule"), whether it had to arrive at the home of the recipient ("received" or "receipt"), or whether it had to be actually read ("communicated" or "communication").
- Unknown to the appellant the respondent wanted to have a communication-free break and the judge found (see [37 xvii, xviii and xx] and  of the judgment), and there is no appeal on this point, that she had not unreasonably avoided receiving the notice.
- At the time of sending the notice, the appellant knew that, (i) the respondent was commencing sick leave from 13 April 2011 and that (ii) she had booked a holiday in Egypt. But the appellant says it did not know, pace  of the judgment, (iii) when she was leaving the country, (iv) when she was returning, (v) what arrangements she had made for collecting her post or (vi) when she was likely to return to work, bearing in mind the fact that she was on sick leave. Nevertheless, the appellant knew that the respondent could be away when the letter arrived as the respondent had told Miss Fawcett and Mrs Dragone that she would be on annual leave until 3 May 2011. Her annual leave card, which was agreed with the PCT in January, apparently said she would be away from 18-28 April 2011. The respondent's counsel, Mr Brown, says it is surprising that she was not asked the question as to when she was in Egypt. Miss Fawcett's evidence, not extended in oral evidence ([36 of the judgment), was (),
"I did not confirm with Mrs Haywood the dates she was actually in Egypt. We were not aware at the time that Mrs Haywood had pre-booked annual leave but I am now aware from Mrs Haywood's annual leave card that she pre-booked her annual leave from 18th to 28th April 2011."
- The judge found as a fact ( of the judgment) that the holiday arrangement (19 April 2011 to 27 April 2011) was made known to the PCT as the contract, by section 14 (the judge says clause 40), required. The judge seems to have been confused about whether the respondent was travelling for two weeks or just one; the letter from Thomas Cook dated 23 February 2011 does not make this clear (contrast  of the judgment), although in 2011 27 April was a Wednesday, Friday 29 April was a bank holiday for the Royal Wedding and Monday 2 May was also a bank holiday. The judge said, at  of his judgment,
"I take that evidence to indicate the date of the 3rd which is recorded in Mrs Haywood's note".
- On 5 May 2011 the respondent wrote to the Head of Human Resources to appeal her dismissal, alleging unfair dismissal and age discrimination, claims which she took to the Employment Tribunal. On 18 May 2011 the appellant wrote to the respondent, purporting (although actually failing to do so) to enclose documentation about other jobs. At a meeting on 9 June 2011, the respondent met Miss Fawcett and Mrs Dragone to discuss Grade 8c jobs and, on 23 and 24 June 2011 the respondent's internal appeal was heard and dismissed. On 5 July 2011, pursuant to a request to be considered for other jobs, the appellant said none was available.
- On 5 March 2012 the Employment Tribunal dismissed the proceedings following withdrawal of the claim by the respondent. It is notable, says the appellant, that under the employment details the respondent said her employment ceased on 15 July 2011 and the schedule of loss is quantified by reference to the same date. The respondent did not complain that she had been paid insufficient wages when her pay ceased on 15 July 2011. At no point did the respondent suggest that she had had insufficient notice of termination of her employment until February 2012 when she sent her letter before action in these proceedings. But Mr Brown says that at the time she was complaining about the fact of her dismissal, not the particular time at which she had been dismissed. In any event, if the respondent is right that the notice of dismissal had to be communicated, the appellant would have been in breach and the respondent could therefore be said to have accepted that breach and sued for damages.
- The rules to be applied when one seeks to terminate employment (I do not understand the judge's comments at paragraphs 57 and 58 of his judgment) are,
(i) The rules of common law- the contractual right to terminate- (discussed but not decided in Gisda Cyf v. Barratt  UKSC 41) but applied in a different context in Societe Generale, London Branch, v. Geys  UKSC 63.
(ii) An employee's statutory rights under the Employment Rights Act 1996 ("ERA").
- This case, as did Geys, concerned contractual rights alone. The Employment Appeal Tribunal ("EAT") cases or similar (such as George v. Luton Borough Council UKEAT/0311/03, Hawes &. Curtis Limited v. Arfan and Anor  ICR 1244, Horwood v. Lincolnshire CC UKEAT 462/11/RN, Robinson v. Bowskill and Ors UKEAT/313/12, Sandle v. Adecco UK Limited UKEAT/0028/16/JOJ, Standard Telephones and Cables Limited v. Yates  IRLR 21, Wang v. University of Keele UKEAT/223/10) are not directly relevant, nor are the cases which went to the Court of Appeal such as Eastbourne Borough Council v. Foster  ICR 234, London Transport Executive v. Clarke  ICR 355, Kirklees Metropolitan Council v. Radecki  ICR 1244, Boyo v. Lambeth BC  ICR 127 and Gunton v. Richmond Upon Thames BC  Ch 448 since they are overtaken by the decisions of the Supreme Court in Gisda Cyf and Geys.
- I should however mention some of them. I note that the ones prior to Gisda Cyf in the Supreme Court talk about contract and "effective date of termination" (a statutory construct, according to Gisda Cyf) interchangeably. For example, in Brown v. Southall and Knight  ICR 617, (a case about whether an employee had sufficient continuous employment to present an unfair dismissal complaint) it was held that the effective date of termination in the case of an employer who dismisses a man summarily must show that the employee had read the letter of dismissal, or at least, had a reasonable opportunity of reading it. The EAT (chaired by Slynn J) held on p. 623 that the employers were in breach of contract. Again, in Edwards v. Surrey Police  IRLR 456, it was said that the effective date of termination was communication of the termination, but, again, (Morison J presiding) said (at ),
"It seems to us perfectly clear, as a matter of general principle, 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 that it is indeed at an end."
- In Hindle Gears Limited v. McGinty and Ors  ICR 111 (a case about whether the employer could rely on statutory immunity where it dismissed an entire striking workforce) it was held that summary dismissal of an employee did not take effect until the employee had read the letter or had been given a reasonable opportunity of reading it, although "authorities from the general law" were cited.
- In McMaster v. Manchester Airport Plc  IRLR 112, the EAT (Morison J presiding) said ([at 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. That is, in the sense that, an industrial tribunal, when examining whether a dismissal has been communicated to an employee, will be likely to assume that letters usually arrive in accordance with the normal course of post; and that people are to be taken, normally, as opening their letters promptly after they have arrived at their place. But it is to be emphasised that we are dealing with the private rights of parties to a private contract. We are not dealing with rules which govern the service of formal documents, where there may well be room for what is effectively a form of presumed or constructive knowledge. It seems to us that there is no juridical basis for seeking to import technical 'service' rules into the private rights of parties to a contract of service or for personal services."
- And inGisda Cyf in the EAT (UKEAT/0173/08/ZT) Bean J said (at ),
"It is one thing to say that the owners or charterers of a ship [as in The Brimnes  1 QB 929], or similar large commercial concerns, must be taken to receive and read documents sent to them during normal business hours. It is quite another thing to say that the same principle of constructive knowledge should apply to individuals to whom a letter is sent at their home address. What of the person who lives alone and goes on holiday? What of the commercial traveller? What of the student who lives at University during term time and at the family home in the holidays? What of the individual fortunate enough to have a second home to which he or she goes at weekends? There is no principle equivalent to that enunciated in The Brimnes that an individual is expected to be at home to receive and open the post when it arrives or in the evening when he or she gets home, or that some arrangement must be made for someone else to open what may well be confidential correspondence in the recipient's absence."
- Miss Stout, counsel for the appellant, cited different authorities. She relied on the cases where it is the employee who gives notice as there cannot be a different rule for employer and employee as to the right to terminate and, she says, one is dealing with the standard contractual principles. So for example, in London Transport Executive v. Clarke, the question was whether the employers needed to accept a repudiation by letter. The Court of Appeal concluded that a letter did have to be sent. It was open to the parties, she said, to argue that dismissal did not take place until the letter was communicated and the Court of Appeal judgments say that termination occurred at the date of sending, Templeman LJ at 368 and 372 and Dunn LJ at 372. But the issue of the postal rule simply did not arise in that case. In Potter et al v. RJ Temple Plc (in liquidation) UKEAT/0478/03/LA the employee resigned by sending a fax outside office hours. The EAT concluded that the effective date is receipt at the date of the fax. Again, in Vasella Limited v. Eyre UKEATS/0039/11/BI (decided after Gisda Cyf) the EAT (in the person of Lady Smith) decided that the EDT was the date of a letter in which the employee intimated resignation with immediate effect, notwithstanding delivery to the employer the previous day in circumstances in which the employee reasonably believed that it would not be read until the date on the letter.
- Miss Stout also relied on landlord and tenant authorities, offer and acceptance cases and charterparty cases because, she said, they reflect the common law position. She referred to Papillon v. Brunton (1860) 157 ER 1285 in which it was held it was unnecessary for a letter to be read. It is not entirely clear whether it was necessary for a notice to be received during ordinary business hours but it seems not: see Wilde B at p.1287. In Doe dem. Neville v. Dunbar (1826) Moo & M 9 it was held that service of a notice to quit on a servant at the tenant's dwelling house was sufficient, although it did not come to the tenant's attention until six months later. Lord Abbott CJ said,
"I have no doubt that the service of the notice was sufficient…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."
- Tanham v. Nicholson (1872) 5 English and Irish Appeals 561, was determined on an agency point, namely whether service of a notice to quit made at the house of a tenant was sufficient service, notwithstanding that the notice was not delivered to the tenant as the servant burned it. Lord Hatherley LC, Lord Westbury and Lord Colonsay all thought it was good service, but Lord Westbury said (at p.574),
"…if you have to deliver a bill of costs to a party to bring him within the summary remedy given by the statute, the service of a bill of costs on that servant would not be good. But that is a personal matter, which is wholly different, in the nature of things…from a notice to quit served on the demised premises, being left at the house, which is part of the demised premises, where the tenant is actually residing at the time."
- The Court of Appeal decision in Stidolph v. American School in London Educational Trust Limited (1969) 20 P&CR 802 is distinguishable in any case because it was predicated on s.23 Landlord and Tenant Act 1927, which contains a provision saying that documents are duly served if sent through the post by registered letter addressed to the tenant: see Denning MR at p.805. However, Edmund Davies LJ said (at p.805),
"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." In this case there is no challenge to the evidence…that it reached him."
Cross LJ doubted whether it was necessary for the tenant to have seen the letter, but held that in any event the tenant had seen the letter.
- Stephenson & Son v. Orca Properties Limited  2 EGLR 129 does not help at all as it refers specifically to s.196(4) of the Law of Property Act 1925 which only applies to notices authorised to be served or given by the 1925 Act.
- Miss Stout relied on Entores Limited v. Miles Far East Corporation  2 QB 327 as an exemplification of the postal rule. The question in that case was where a contract was made. It was held that, although where a contract is made by post, acceptance is complete as soon as the letter of acceptance is put in the post, where a contract is made by instantaneous communication such as telex or telephone the contract is complete only on receipt. She relied on the citation of Household Fire Insurance Co v. Grant (1789) 4 Ex D 216 in which Thesiger LJ said that the balance of convenience dictates that a contract shall be deemed complete when the acceptance is handed to the Post Office.
- Brinkibon Limited v. Stahag Stahl und Stahlwarenhandelsgesellschaft mbH,  2 AC 34 is a similar case to Entores v. Miles, with a similar issue as to where the contract was made. In that case the House of Lords refused to extend the postal rule to acceptances made by telex, saying that an acceptance takes effect when a telex arrives on the offeror's machine. The rationale is, said Lord Wilberforce at p.41,
"the extraordinary and mischievous consequences that would follow if it were held that an offer might be revoked at any time until the letter accepting it had been actually received."
- Miss Stout relied on the case however chiefly for Lord Wilberforce's general approach, namely that there is, "no universal rule in all cases".
- In The Brimnes (Tenax Steamship Co Limited v. The Brimnes (Owners))  1 QB 929, a charterparty case (that is to say a contract for services) in which it was held that adequate notice of withdrawal was given and received by telex message at the time it was sent and received, notwithstanding that it was not read. The judge below (Brandon J) decided that the message was transmitted during ordinary business hours, and the Court of Appeal did not disturb that finding. It is evident from the report that other charterparty cases followed the same reasoning. Edmund Davies LJ said (at p.945),
"Then what more could the owners' agents in the present case reasonably have been expected to do, than they did?"
And Megaw LJ said (at p.966-7),
"I think the principle which is relevant is this: if a notice arrives at the address of a 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 of himself or his servants to act in a normal businesslike 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 comes to his attention."
In The Brimnes it was said (by Edmund Davies LJ at p. 944-946) that the rule in Scarf v. Jardine (1881-2) 7 App Cas 345 (requiring actual notice that a partnership has been dissolved) does not have universal application.
- The only real analysis of contractual principles is that of Lloyd LJ in Gisda Cyf (dissenting in the Court of Appeal) in which he concluded after consideration of authority that a notice takes effect on delivery of the notice, not in accordance with the postal rule, and not on communication, (at -),
"regardless of whether or not the employee was there at the time or later on that day, or did not see the letter, for whatever reason, until a later date…
… the letter was effective to bring the contract to an end on the day on which it was delivered to the employee's address".
- However, he also said (at ),
"it might not be irrelevant for the employer to have known, for example, that the employee would not be at the relevant address at the time when the letter might be expected to be delivered."
- In this case, I observe in passing, the appellant did not know for certain or indeed care whether the employee was at the address at the time when the letter might be expected to be delivered.
Express term: Ground 1 of the Grounds of Appeal
- The judge held that as a matter of construction the respondent's contract contained an express term requiring written notice of termination personally to have been received and read by the respondent before the period of notice could start to run. Section 19 of the contract needs to be construed. The first ground of appeal is that the judge's construction of the contract was wrong, that he should either have found the contract to be silent or that notice would start to run from the date when the notice was posted or from a deemed service date. The contract stipulates,
"19 NOTICE PERIODS
Unless there is mutual agreement that a different period should apply, this employment may be terminated by you or [the appellant] by the notice period as set out in Section 1, subject to [the appellant] giving you the minimum statutory period of notice as follows:
For staff with 4 weeks or more but less than two years continuous service – 1 week
For staff with 2 years or more continuous service – 1 week per complete year of continuous service subject to a maximum of 12 weeks.
There is no entitlement to notice in the event of summary dismissal. Should you leave without giving proper notice and without the agreement of your manager, [the appellant] reserves the right to not pay you for each day not worked during the notice period."
- The judge said (at paragraph 67),
"Clause 19 of the contract has two separate sentences to it, or can be divided into two separate parts. The first part refers to notice being given by either the employer or employee; and the second part is referable only to the employer. I pick that up from the express words in clause 19 in which it says: 'Subject to [the appellant] giving you the minimum statutory period of notice as follows'. It therefore follows that express term, that it is for the NHS to give Mrs Haywood notice and therefore meaning has to be given to those words that they must 'give you' notice. What they are required to do as far as this is concerned, is give that twelve weeks' notice. That fixes the period of time, but the express term is 'give you' notice. To give someone notice, construing this as an express term, indicates that they must of course achieve that end and therefore give something to them."
- The reference to "the minimum statutory period of notice", says Miss Stout, suggests that the judge thought that the appellant was giving notice under the second part. However, because the respondent had a break in service in 2008 the appellant was giving notice under the first part of Section 19 so that, she says, the contract was silent on the matter about "giving" notice. I am not sure that the contract can be split up in this artificial way, and in any event I do not place the emphasis on "giving" notice that the judge places on it.
- Miss Stout referred to s 179 ERA 1996 as (i) an example of Parliament having provided as a matter of policy for deemed notice to suffice in certain contexts in the employment sphere; and (ii) the word "give" being used in a way that did not import "communication".
- Section 7 of the Interpretation Act 1978 provides as follows in relation to references to service by post,
"Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expression "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
But it only applies to a statutory requirement so I do not consider that it helps in this case, which is entirely contractual.
- There are three other factors, says the appellant, which point to the fact that the judge was wrong on the issue of express term. First, section 19 focuses on the "giving" of notice, not the receiving of it. I note that s.7 of the Interpretation Act specifically mentions the word "give". Secondly, the first part of section 19 refers to notice from both employer and employee. Both employer and employee would worry about certainty. Thus the employee would expect to be able to rely on their letter not being delayed in the post or their manager being on holiday, especially as the section reserves to the employer the right to dock the pay of an employee who does not give proper notice. The respondent says however that few employees need give notice of termination by post and the absence of a manager on holiday would not prevent effective notice if given as it should be to a human resources department rather than a particular person. The employer would also worry about certainty. Thirdly, says the appellant, other policies of the appellant (and the PCT before it) (such as the Disciplinary Policy) concentrate on receipt (see [18.104.22.168], [22.214.171.124]. and [2.9.2],) while there is no such reference in the notice period. Mr Brown says these are the appellant's procedures, whereas the appellant was operating an employment contract it had inherited. It was the PCT's policies and procedures which applied. Nevertheless, it is evident from the header that this was also the PCT's policy.
- However, Mr Brown says that in any event the judge was right to construe the word "give" in section 19 to mean more than sending something to the respondent. "Give" imports notions of administering, handing over, bestowing, imparting and communicating, whereas send does not have this meaning.
- I am not sure that the expression "giving" notice can bear the weight given to it by the judge. It cuts both ways as can be seen from the respective submissions of the parties in this case. Section 19 to my mind deals simply with length of notice period, not the date when the notice terminated the contract.
- Miss Stout contends that the analysis in Investors' Compensation Scheme v. West Bromwich Building Society  1 WLR 896 and Attorney General of Belize and Ors v. Belize Telecom Limited and Anor  1 WLR 1988 therefore applies.
Ground 2: Implied term
- Mr Brown says that the judge decided the matter on the implied term, not the express term, so that Ground 1 is misconceived in any event. He says that the judge was worried that the express term negated the implied term but I do not think that is the proper construction of  of the judgment.
- In Geys, Baroness Hale (with whom the other members, other than Lord Sumption, of the Supreme Court agreed: see ,  and ) said (at  and ff),
" Amid the welter of case law and academic commentary upon the subjects of both wrongful and unfair dismissal, there appears to be remarkably little discussion of the requirements for a lawful dismissal under the terms of the employment contract. Ever since indefinite terms of employment became the norm, the courts have implied a term that either party may bring it to an end by giving notice: see Deakin & Morris, Labour Law, 6th ed (2012), paras 5.13, 5.14. In 1963, statute intervened to lay down minimum periods of notice to which the employee is entitled and a lesser period to which the employer is entitled: see now, the Employment Rights Act 1996, sections86 et seq. But the parties are, of course, free to provide expressly in their contracts for longer periods of notice…
 Statute is, however, silent as to the manner in which such notice is to be given…
 … it is important to distinguish between two different kinds of implied terms. First, there are those terms which are implied into a particular contract because, on its proper construction, the parties must have intended to include them: see Attorney General of Belize v Belize Telecom Ltd  1 WLR 1988. Such terms are only implied where it is necessary to give business efficacy to the particular contract in question. Second, there are those terms which are implied into a class of contractual relationship, such as that between landlord and tenant or between employer and employee, where the parties may have left a good deal unsaid, but the courts have implied the term as a necessary incident of the relationship concerned, unless the parties have expressly excluded it: see Lister v Romford Ice and Cold Storage Co Ltd  AC 555, Liverpool City Council v Irwin  AC 239…
 … it seems to me to be an obviously necessary incident of the employment relationship that the other party is notified in clear and unambiguous terms that the right to bring the contract to an end is being exercised, and how and when it is intended to operate. These are the general requirements applicable to notices of all kinds, and there is every reason why they should also be applicable to employment contracts. Both employer and employee need to know where they stand. They both need to know the exact date upon which the employee ceases to be an employee. In a lucrative contract such as this one, a good deal of money may depend upon it. But even without that, there may be rights such as life and permanent health insurance, which depend upon continuing to be in employment. In some contracts there may also be private health insurance. A person such as the claimant, going on holiday over Christmas and the New Year, needs to know whether he should be arranging these for himself. At the other end of the scale, an employee who has been sacked needs to know when he will become eligible for state benefits."
- It is true that Lady Hale was focussing on PILON payments in establishing the termination date, that is to say, payments made in lieu of notice. Geys concerned a wrongful summary dismissal and involved the question whether the innocent party had the right to elect to accept the repudiation, that is to say, whether there was an automatic or an elective termination: see especially per Lord Wilson.
- I accept that Geys was a different case from the present so Lady Hale's comments are not directly relevant, but she appears to be laying down a more general rule in  that there is a requirement that employees need to know where they stand, that the date of notice carries some importance and that there is therefore a general requirement that all notices of all kinds in employment contracts need to be communicated.
- In Geys, there was a provision in the contract, deeming receipt two days after sending. But the fact that Lady Hale says that a term is to be implied notwithstanding the deeming provision shows that the deeming provision did not dispense with the need to give notice that the employment was being terminated.
- It is evident from Lady Hale's judgment in Geys that certainty is paramount. The appellant says that the postal rule and the received rule are more certain. I do not agree: they are more certain as far as the employer is concerned, since the date of termination depends on when an employee happens to read a letter, but what of the facts of this case? Where the letter was misdated and the proposed date of termination was therefore incomprehensible to the employee? Miss Stout says that she relies on Vasella v. Eyre for this purpose, but one has to look at the ordinary person and their construction of the notice of dismissal. She says that both parties can calculate the date of sending from the date on the letter or the postmark. But what if there is no postmark or it is illegible? The slip pushed through the door was pleaded in the Defence, apparently as a result of a statement from the appellant's solicitors, as dated 22 April 2011, although the judge found as a fact that it landed on the mat on 21 April. What effect does such a slip have on the receipt of the notice?
- Miss Stout says that certainty allows the employer not to pay an employee without facing wrongful dismissal claims. But the rule is there to protect the employee, not the employer. Lastly, the appellant is a guardian of public funds. But the rule cannot change depending on the identity of the employer.
- Miss Stout relies on posting, or at any rate, "deemed service" or receipt in "due course of post". She also says that (relying on Lady Hale in Geys) it may be necessary for the respondent to have received some communicated notice of the dismissal but, with such a long period of notice, it does not matter when such notice was communicated: see Reda v. Flag Limited  IRLR 747. The Civil Procedure Rules do not apply (they only apply to service of documents under the CPR) so I do not understand "deemed service" or "due course of post". As for some notice requiring the dismissal to be communicated, I do not understand this either. If the notice was communicated on the last day of the 12 weeks that would plainly not give the respondent any time at all. The letter must be effective when posted, received or communicated.
- West v. Kneels Limited  ICR 146 is common ground. In employment contracts where notice is given orally, it takes effect from the next day and where a particular number of days' notice is required, they must be clear days. However that case concerned statutory dismissal only (it is an EAT case- Popplewell J presiding) and the EAT made it clear that the decision was limited to oral termination.
- I do not find the EDT cases helpful as they are summary termination cases and since Gisda Cyf the principles of the law of contract are of limited relevance to the EDT. Nor do I find the landlord and tenant cases helpful as they are confined to sending notices to a tenant and are so far removed from the position of employer/employee, which are based on a special relationship: see Johnson v. Unisys  1 AC 518, Reda v. Flag Limited at . Nor do I find the offer and acceptance cases helpful. They are for the benefit of the offeror (see Entores v. Miles (at 336 per Parker LJ)), whereas employment cases are for the benefit of the employee. The charterparty cases are predicated on the basis that where a notice is received during office hours that notice would in the ordinary course of business come to the attention of the person concerned on its arrival.
- Employer/employee cases are cases where, as Miss Stout concedes, some communication of dismissal is necessary at some point. They are personal cases, based on the private rights of parties to a contract of employment.
- I prefer the reasoning (but not the reasoning generally) of Lloyd LJ, in Gisda Cyf as to receipt, rather than posting. As he points out, in The Brimnes, "mere sending without receipt would not have been sufficient." In the landlord and tenant cases, sending would yield to proof of non-receipt: see e.g. Stidolph at p.805 per Edmund Davies LJ. See also Brinkibon. But it does not matter on the appeal as the letters did not in fact get lost or delayed in the post.
- I find that the contents of the letter had to be communicated to the employee. That is the effect of Geys, and in employment law, it is necessary for the employee to know where he or she stands. I agree, for the same reasons, with what Bean J said in  of his judgment in the EAT in Gisda Cyf.
Waiver by mutual agreement: Ground 3 of the Grounds of Appeal
- Miss Stout says that there is waiver of the appellant's failure of communication by mutual agreement, generally or under section 19 of the contract. Mutual agreement was dealt with very briefly by the judge in his judgment at . What is required for acceptance by conduct is a positive act or forbearance and Miss Stout relies on FW Farnsworth Limited v. Lacy and Ors  EWHC 2832 (Ch);  IRLR 198. However, that was a very different case in which the employee continued to work, implying acceptance of the employer's terms. If communication is the proper test, and this hypothesis assumes that it is, the respondent was not effectively dismissed on 12 weeks' notice, so that in pursuing the remedies she did she accepted the repudiation. She showed that by claiming damages. Thus it was at best an equivocal act and not mutual agreement generally or under clause 19 at all.
Waiver by election: Ground 4 of the Grounds of Appeal
- The appellant has abandoned its argument about waiver by election, so I need not deal with it.
Waiver by estoppel: Ground 5 of the Grounds of Appeal
- Waiver by estoppel will be established for present purposes when,
(a) The representor has knowledge of facts giving rise to legal rights,
(b) He or she acts in a manner inconsistent with anything other than waiving that right and
(c) The representee relies on the first party's actions in circumstances where it would be inequitable for the representor to enforce his legal rights inconsistently with the representation.
- Miss Stout cites The Kanchenjunga  1 Lloyd's Rep 391 (especially Lord Goff at 399), Kosmar Villa Holidays Plc v. Trustees of Syndicate 1243  Bus LR 931 (especially Rix LJ at ) and (although it is an election case) Kammins Ballrooms Co Limited v. Zenith Investments (Torquay) Limited  AC 850.
- The judge deals with this in - of his judgment. However, (whether or not the appellant can show the first two matters, and I say nothing about that, save that the respondent was legally represented throughout) the appellant has failed to show reliance in the sense that there is no evidence of it. Miss Stout says that the loss of an opportunity to certify is a detriment, but the witnesses do not say, for example, "we thought the contract was terminating on 15 July, so we did not do what we would otherwise have done". There is therefore no reliance.
Certification under Regulation E3 of the NHS Pensions Regulations 1995 (of refusal to seek/accept suitable alternative employment); Ground 6
- In - of the judgment the judge found that the appellant could not lawfully have certified that the respondent had unreasonably refused to seek alternative employment, or accept an offer of such employment.
- There are two separate questions: whether the appellant would have certified, and if so, whether it would have been lawful for it to do so.
- Regulation 3 of the NHS Pension Scheme Regulations 1995/300 (see also s.50 of the Pensions Act 1995) provides (in Part E) that a member will not be able to claim a non-actuarially reduced early retirement pension if the employing authority certifies that the member has unreasonably refused to seek suitable alternative employment or accept an offer of such employment.
- It was not, says the appellant, a matter for the judge to decide whether the respondent had had a reasonable opportunity; it is the appellant which is the primary decision maker so that the judge's task was to review on Wednesbury grounds (Associated Provincial Picture Houses Limited v. Wednesbury Corporation  1 KB 223) the basis on which the appellant maintained that it could have issued such a certificate: R (Foster) v Eastbourne BC  EWCA Civ 1091;  ICR 234. Miss Stout submits that the question should be remitted back to the judge to make such a decision.
- However, the Court is being asked to make a finding of fact which the judge failed to make. It cannot do this on the evidence before it. Miss Stout alleged that there was evidence before the judge, but she did not produce it until the last minute and this court ruled it out because it was produced too late.
- The first issue is whether the appellant would (not whether it could) have made a certification on the balance of probabilities. There is no evidence before this court suggesting that it would have done so.
- I therefore dismiss this ground of appeal also.
- I therefore find that,
(a) The letter of dismissal had to be actually communicated to the employee before it took effect. Accordingly, the respondent was entitled to receive her pension at the higher rate as there was no communication before 27 April and thus notice did not expire before her 50th birthday.
(b) The other grounds of appeal, waiver by mutual agreement, waiver by estoppel and that the appellant would have lawfully made a declaration under Regulation E3 of the NHS Pensions Regulations 1995, also fail.
- I would therefore dismiss the appeal. I should add that I agree with Arden LJ's judgment, particularly with her reasons in . I have reached the same conclusion by a different route. We have different responses to Geys, but that is more a difference of emphasis rather than a difference in principle as I have accepted in  that Lady Hale was dealing with a different point.
Lord Justice Lewison:
- I am grateful to Proudman J for having set out the background facts. But I regret that I cannot agree with her conclusion that notice was not given to Mrs Haywood before 27 April 2011. I have also had the privilege of reading Arden LJ's judgment in draft. I regret that I cannot agree with her conclusion either. Let me explain why.
- Clause 19 of Mrs Haywood's contract of employment provides:
"Unless there is mutual agreement that a different period should apply, this employment may be terminated by you or [the Trust] by the notice period as set out in Section 1, subject to [the Trust] giving you the minimum statutory period of notice as follows:
For staff with 4 weeks or more but less than two years continuous service – 1 week
For staff with 2 years or more continuous service – 1 week per complete year of continuous service subject to a maximum of 12 weeks.
There is no entitlement to notice in the event of summary dismissal.
Should you leave without giving proper notice and without the agreement of your manager, [the Trust] reserves the right to not pay you for each day not worked during the notice period."
- The notice period set out in Section 1 of the contract was 12 weeks.
- Mrs Haywood celebrated her 50th birthday on 20 July 2011. If she was still employed by Newcastle Upon Tyne Hospitals NHS Trust on that date she will be entitled to an enhanced pension. This appeal raises the following issues:
i) By what means did the Trust attempt to give notice to terminate Mrs Haywood's employment?
ii) Was any of those means successful in doing so before 27 April 2011 (12 weeks before her 50th birthday)?
iii) If not, is Mrs Haywood now precluded from taking that point, either because she has elected to treat her employment as having been effectively terminated or because she is estopped from doing so?
- The first of these questions is a simple question of fact. The second also largely depends on the facts found. In a judgment of inordinate length full of irrelevant detail, in which he lost sight of the wood for the trees, the judge failed to make clear findings of fact. If I may repeat something I have said before:
"The primary function of a first instance judge is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. He should give his reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view, not to spell out every matter as if summing up to a jury." (Fage UK Ltd v Chobani UK Ltd  EWCA Civ 5;  ETMR 26 at )
- The Trust's case was that it had given notice to Mrs Haywood by a letter dated 21 April 2011 (but sent on 20 April) which was:
i) Sent to her at home by recorded delivery
ii) Sent to her at home by ordinary post and
iii) Sent by e-mail to her husband's e-mail address.
- The relevant part of the letter stated:
"I wish to confirm that by way of this letter I am issuing you with 12 weeks notice that you will be dismissed by reason of redundancy on Friday 15th July 2011."
- The judge found that the letter was indeed sent by recorded delivery. However, when the Royal Mail tried to deliver it on 21 April, there was no one at home because Mrs Haywood and her husband were on holiday in Egypt. Royal Mail left a card, also dated 21 April, notifying Mrs Haywood of the attempted delivery. Mr Crabtree (Mr Haywood's father) gave written evidence that Mrs and Mrs Haywood had asked him to look after their house while they were away (although the judge did not record this evidence). Mr Crabtree found the card from Royal Mail but he did not collect the letter from the sorting office until 26 April. He then took the letter to Mrs Haywood's home and left it there for her thinking that she would arrive home later that day.
- The judge did not make any express finding about the letter that had been sent by ordinary post. He recorded the evidence of Ms Fawcett, the Trust's director of HR, that the letter "was posted both by first class post and by recorded delivery" on 20 April 2011. But he did not say whether he accepted or rejected that evidence. If there is one thing that a trial judge must do it is to find the relevant facts. He made a finding that there were two communications to Mrs Haywood; but that finding is obscure. He might have meant that there was one letter and one e-mail (although the e-mail was sent to Mr Haywood's e-mail address) or he might have meant that there were two letters sent to Mrs Haywood (and a third communication sent by e-mail to her husband). Counsel were unable to elucidate. It is particularly regrettable that the judge made no clear finding about the letter said to have been sent by ordinary post because part of Arden LJ's reasoning turns on that failure.
- The judge's account of the morning of 27 April is as follows. Mrs Haywood awoke at 8 a.m. She opened "the post including the recorded delivery letter" either at 8.00 a.m. or at 8.30 a.m. (the judge appears to have made both findings). Her father-in-law called in at about 10.a.m: "he had checked and received a letter which he said he had collected from the local sorting office" on 26 April. Whether Mrs Haywood also opened the letter that had been sent by ordinary post is unclear because the judge made no explicit finding. However, it is clear that she opened the recorded delivery letter that her father-in-law had left for her on 26 April after he had collected it from the sorting office.
- Let me take first the letter sent by recorded delivery. A failed attempt to deliver a recorded delivery letter, which requires a signature before the postman will release it, is no delivery at all. I do not accept Ms Stout's submission that placing notification of an attempted delivery through the letter box is tantamount to delivery itself. As Scott J put it in Stephenson v Orca Properties Ltd  2 EGLR 129:
"Delivery of a recorded delivery letter is, however, different. Delivery cannot, in the ordinary course of post, be effected unless someone signs a receipt. If no one is available to sign or is willing to sign a receipt, delivery will not be effected. I do not see how "the time at which the … letter would in the ordinary course be delivered" can be held to be a time when the postman would, in accordance with his standing instructions, be bound to withhold delivery. Delivery in the ordinary course of post requires, where recorded delivery letters are concerned, an available recipient; it cannot take place at a time when there is no available recipient."
- Ms Stout suggested that the practice of Royal Mail had changed since 1989. Instead of not delivering the recorded delivery letter and simply trying again, Royal Mail now leave a card informing the recipient of attempted delivery. There is no evidence that the practice has in fact changed in this respect. But even if it has, I do not consider that leaving a card which in effect states that a recorded deliver letter has not been delivered can be relied on as delivery of the recorded deliver letter itself.
- In some cases a statutory deeming provision (such as section 196 of the Law of Property Act 1925) may override the real facts: see WX Investments Ltd v Begg  EWHC 925 (Ch),  1 WLR 2849. But no one has suggested that there is a statutory deeming provision which is relevant to our case. Section 196 applies only to property, and the statutory presumption in section 7 of the Interpretation Act 1978 does not apply to deeds or other documents (see Interpretation Act 1978 s. 23 (3)). However, on the judge's findings, Mrs Haywood's father in law collected it from the sorting office on 26 April (having signed a receipt for it). By taking it upon himself to collect and sign for that letter he must, in my judgment, be taken to have been acting as Mrs Haywood's agent otherwise he would have had no business in interfering with a recorded delivery letter addressed to her personally. Nor would Royal Mail have had any business releasing a recorded delivery letter to anyone other than the addressee or her agent. But even if he was not Mrs Haywood's agent (and even if Mrs Haywood's action in opening the letter did not amount to retrospective ratification of an unauthorised act) the fact remains that the recorded delivery letter was both signed for and in fact arrived at her home on 26 April. It was therefore delivered to her home on 26 April.
- If the judge accepted Ms Fawcett's evidence that the letter was also sent by ordinary post, the probability is that it arrived at Mrs Haywood's home within a day or two of having been posted. It would have been awaiting her return from holiday. In Walter v Haynes (1824) Ry & M 149 Lord Abbott CJ said:
"Where a letter, fully and particularly directed to a person at his usual place of residence, is proved to have been put into the post-office, this is equivalent to proof of a delivery into the hands of that person; because it is a safe and reasonable presumption that it reaches its destination…"
- As Parke B observed in Warren v Warren (1834) 1 Cr M & R 250:
"If a letter is sent by the post, it is prima facie proof, until the contrary be proved, that the party to whom it is addressed received it in due course."
- This is a common law presumption which encompasses both (a) the fact of arrival and (b) the time of arrival of a properly stamped and addressed letter. In my view the phrase "due course," in the context in which Parke B used it, means "in due course of post". I have referred to these old cases because they are unencumbered by any statutory presumption.
- As far as the e-mail is concerned, it was not sent to Mrs Haywood's personal e-mail address (if, indeed, she had one). It was sent to her husband's. However, it is the case that a few days earlier Mrs Haywood had sent an e-mail to the Trust using that e-mail address. As far as I can tell from the judge's findings that was a "one-off" event. The mere use of that e-mail address was not therefore a course of conduct. Nor do I consider that in itself it can be taken as an indication that communications could be sent to Mrs Haywood at that address any more than it would have been if she had written a letter on the headed writing paper of the hotel in Egypt where she had been staying. In those circumstances I do not consider that the sending of an e-mail to Mr Haywood's e-mail address and its receipt in his in-box can be regarded as having given notice to Mrs Haywood.
- The contract says that in order to terminate it the party wishing to do so must give "notice" to the other. In some cases a contract may explicitly distinguish between the giving of notice and the receipt of notice. In such a case the correct interpretation may be that notice is given when it is sent: Bremer Handelsgesellschaft MBH v Vanden Avenne-Izgem PVBA  2 Lloyd's Rep 109. But in general a requirement to give "notice" is inconsistent with Ms Stout's submission that placing a notice in the post is all that is needed, irrespective of the question whether it reaches its intended destination. For example in Holwell Securities Ltd v Hughes  1 WLR 155 an option to buy property was exercisable by "notice" in writing. Notice was posted to the grantor of the option but it never arrived. Russell LJ said:
"The relevant language here is, "The said option shall be exercised by notice in writing to the intending vendor …," a very common phrase in an option agreement. There is, of course, nothing in that phrase to suggest that the notification to the defendant could not be made by post. But the requirement of "notice … to," in my judgment, is language which should be taken expressly to assert the ordinary situation in law that acceptance requires to be communicated or notified to the offeror, and is inconsistent with the theory that acceptance can be constituted by the act of posting,"
- At common law, where A wishes to give notice under a contract to B the most that is usually required of him is to deliver the notice or cause it to be delivered at the recipient's proper address. It is ordinarily no concern of his whether B is at home to receive it. Thus in Stephenson v Orca Scott J accepted the submission that:
"The time of delivery in the ordinary course of post could not… depend on whether or not the premises to which the letter was addressed were, when the postman arrived, occupied or empty."
- The older cases reinforce the point. In Doe d. Neville v Dunbar (1826) Moo & M 9 Lord Abbott CJ held that delivery of a notice to quit to the tenant's house in her absence was good service, because:
"…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."
- Papillon v Brunton (1860) 5 Hurl & N 581 is another old case that illustrates both this point and also the efficiency of the Victorian postal service. A tenant of property in London wished to give notice to quit to his landlord. He put a letter in the post in London between 9 a.m. and 10 a.m. on 25 March addressed to his landlord's agent in the Temple. The letter gave exactly two quarters' notice, which was the notice required to terminate the tenancy. It was therefore essential to its validity that it was served on that very day. Had it been delivered in the ordinary course of post it would have been delivered that same morning. However, when the landlord's agent left work between 6 p.m. and 7 p.m. that evening he said that it had not arrived, although he found it when he went back to work on the following morning. The jury found that it had been delivered on 25 March after the agent had left work, and not on the following day when he found it. It was held that the notice was validly given on that day, even though the agent was not there to receive it. In the course of argument Pollock CB is recorded as saying:
"If a notice to quit was left at the dwelling-house of a landlord and he was abroad, that would be sufficient to determine the tenancy."
- In the course of his judgment Pollock CB said:
"As this letter was posted in London between nine and ten o'clock in the morning, the probability is that it arrived immediately after the agent left his chambers. Indeed it is possible that it may have arrived in the due course of post, but by some accident was overlooked—either not delivered by the servant to the clerk or in some way mislaid. Besides it did not appear that it was not delivered before seven o'clock in the evening; and the jury considered that the agent ought to have had some one in his chambers at that time. A notice so sent must be considered as having reached the agent in due time, and the same consequences must result as if he had actually been there and received it. In my opinion the finding of the jury was right, and the notice was delivered at the agent's place of business in sufficient time to inform him, if he had been there, that the tenancy was to be determined at the time specified." (Emphasis added)
- This was, of course, a case in which the tenant had made no attempt to serve the landlord personally. But to my mind it is clear that service on the landlord's agent was good by virtue of the fact of delivery of the notice to its intended destination even though the agent was not there to receive it. Moreover Pollock CB said in terms that leaving a notice at the landlord's dwelling while he was abroad would have been good service. That, in my judgment, is on all fours with the facts of our case.
- In Tanham v Nicholson (1872) LR 5 HL 561, 573 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." (Emphasis added)
- This dictum was approved by Lord Denning MR in Stidolph v American School in London Educational Trust Ltd (1969) 20 P & CR 802:
"In any case, 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. Obviously, he would not get out of it by saying that he destroyed the envelope without opening it. Nor does he do so by saying that he did not read it."
- It is true that these cases involved landlords and tenants. But in Stidolph Edmund Davies LJ put the point more generally:
"Based upon considerations mainly of business efficacy, there is a long-standing presumption in our law that a letter, duly addressed, prepaid 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.""
- Likewise in The Brimnes  QB 929 Megaw LJ said:
"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 of himself or his servants to act in a normal businesslike 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."
- The Brimnes was a case of a time charter, which is classified in law as a contract for services; so the principle is not restricted to contracts relating to property.
- In Holwell Russell LJ also considered what the position might have been if the notice had actually reached its intended destination. He said (obiter):
"What if the letter had been delivered through the letter-box of the house in due time, but the defendant had either deliberately or fortuitously not been there to receive it before the option period expired? This does not persuade me that the artificial posting rule is here applicable. The answer might well be that in the circumstances the defendant had impliedly invited communication by use of an orifice in his front door designed to receive communications."
- Arden LJ has drawn attention to the decision of this court in Freetown Ltd v Assethold Ltd  EWCA Civ 1657,  1 WLR 701. The contest in that case was whether time for appeal against a surveyor's award under the Party Walls etc Act 1996 ran from the date when he posted his award to the parties or the date when it was received. The court did not distinguish between the date of delivery of the award in the post and the date of receipt. The real issue was whether section 7 of the Interpretation Act 1978 applied; and the court held that it did. In my judgment that case does not support any distinction between the actual date of delivery of a communication through the post to its intended destination and its receipt by the addressee.
- Arden LJ has also postulated various calamities that might occur after the communication has reached its destination, such as being eaten by the dog or removed by a visiting plumber. These in my opinion are risks that should fall on the intended recipient of the notice rather than the sender. I find some support for that position in the decision of Neuberger J in Kinch v Bullard  1 WLR 423. The facts of that case were remarkable. Mr and Mrs Johnson were joint tenants of the matrimonial home. In connection with impending divorce proceedings Mrs Johnson instructed her solicitors to serve notice on Mr Johnson severing the joint tenancy. Notice was posted and arrived at the house. The case was argued on the basis that Mr Johnson did not see it. He suffered a heart attack at about the time when the notice would have been delivered in the post and was admitted to hospital. Thinking (correctly) that he was likely to die, Mrs Johnson changed her mind about severing the joint tenancy and destroyed the notice. Mr Johnson died in hospital without returning home and without having seen the notice. Admittedly the case engaged section 196 of the Law of Property Act 1925, but Neuberger J also considered the matter as a question of policy. Neuberger J said:
"The defendants also rely on the unusual feature of this case that the person who physically got the notice, and indeed who destroyed it, was the very person who sent it, namely Mrs. Johnson. It can be said to be one thing for a sender to be entitled to assume that he has given a notice to the addressee if he serves at the property, even if a third party picked up the notice and filed it away or destroyed it: as between the sender and the addressee, one can see good policy reasons as to why such a risk, like the possibility of the dog eating the notice, should be that of the addressee and not that of the sender. However, there is obviously a powerful argument for saying that the position should surely be different where it is the sender herself who has picked up the notice and filed it away or destroyed it." (Emphasis added)
- However, he rejected the suggested distinction. The notice was served when it reached its intended destination. The risk that a letter might be left on the doorstep and blown away in the wind (another example postulated by Arden LJ) would, I think, be countered by the proposition that leaving a letter on the doorstep rather than inserting it through the letter box or slipping it under the door is not a proper way of ensuring that it reached its intended destination: compare Lord Newborough v Jones  Ch 90 (notice to quit validly served by being slipped under the door even though it slid under the lino and never came to the tenant's attention: the possibility of the dog eating the notice was also raised in argument).
- Wilderbrook Ltd v Olowu  EWCA Civ 1361,  P & CR 4 concerned the service of a counter-notice under a rent review clause. The landlord was entitled to trigger the rent review by serving notice on the tenant. If the tenant wished to contest the review the lease required counter-notice to be given within one month of the "receipt" of the notice. The landlord's notice was sent by post to the premises on 15 April and was delivered on 16 April. However, the tenant argued that he had not received it until a later date. Counsel for the landlord, Mr Blaker, argued that the date of delivery of the letter was the date of receipt. Counsel for the tenant argued that the concept of "receipt" was different from service and that the notice only came into the hands of the tenant or his agent in the second or third week of May. Pill LJ, with whom Carnwath LJ agreed, said:
" I agree with Mr Blaker's submission. Clearer and specific words would have been required if it had been intended that the service on the tenant, contemplated by the opening words of the Schedule, was not effected until the tenant himself, or his authorised agent, saw the document. In this context, certainty is important and if the relevant date is to be a moveable one to the extent claimed by the tenant, that requirement would not be satisfied.
 Clause 8 of the lease incorporates statutory provisions as to service and the word receipt may have been used to ensure that an actual date rather than a deemed date was the relevant one but receipt in this context means receipt at the demised premises. In my judgment, the rent review notice was received, within the meaning of para.1 of the Schedule, on April 16."
- In other words, the notice was received (or actually received) when it arrived at its intended destination. Any distinction between arrival at the destination and receipt by the tenant was rejected. This is entirely consistent with the statutory provisions considered by the court in Freetown. The statutory presumption is that if a letter is properly stamped and addressed it is, unless the contrary is proved, deemed to have been served at the time when it would be delivered in the ordinary course of post. The critical time, in my judgment, is the time of delivery of the letter; and it is the presumption about that time that the recipient is entitled to rebut. I do not consider that the presumption could be rebutted by showing that although the letter arrived the recipient did not read it. Indeed in my opinion once the letter has arrived at its intended destination there is nothing left to rebut. Service has been effected. I understand Arden LJ to agree that notice may be received even though the recipient did not read it. What I do not entirely understand is how receipt in that context differs from delivery, unless it is intended to cater for the case in which the recipient knows or suspects what the postal packet contains and picks it up from the doormat, thus receiving it, before destroying it.
- Thus far, the cases all point one way. Notice is properly given if and when the notice reaches its intended destination. This contract, however, was a contract of employment. A contract of employment is a personal contract, which creates a personal relationship. Does that make all the difference?
- In Gisda Cyf v Barratt the question was the meaning of the phrase "the effective date of termination", as defined by section 97(1) of the Employment Rights Act 1996. That question was considered both by this court ( EWCA Civ 648;  ICR 1408) and by the Supreme Court ( UKSC 41;  ICR 1475). Ms Barratt had been summarily dismissed without notice for gross misconduct. She was informed of her dismissal by letter. Three dates were canvassed as the effective date of termination:
i) The date when the letter was posted;
ii) The date when it was delivered to her home address; and
iii) The date when she opened and read it.
- If the effective date of termination was any date other than the last of the three her claim to the employment tribunal was out of time. At  Mummery LJ emphasised that although "termination" is a common law concept, what was in issue was the statutory phrase. This court, by a majority, approved the decision of the EAT that:
"Where a decision to dismiss is communicated by a letter sent to the employee at home, and the employee has neither gone away deliberately to avoid receiving the letter nor avoided opening and reading it, the effective date of termination is when the letter is read by the employee, not when it arrives in the post."
- However, Mummery LJ was at pains to point out that although the contrary argument based on the contractual analysis had the support of legal logic, the question was one of statutory construction. In his dissenting judgment Lloyd LJ considered the position as a matter of "the general law of contracts of employment": see . At  and  he rejected the submission that merely posting a letter was enough, and at  said that dismissal was not complete until the letter had been received and added:
"If the letter is committed to the ordinary post, the employer runs the risk that it may go astray, or it may be delayed so as to arrive later than would normally have been expected. That degree of uncertainty is inherent in use of the post. Use of recorded delivery gives greater certainty, though of course if no-one is present to sign for it, the letter may not be delivered at once, may not be collected from the post office by the addressee within the time normally allowed, and may eventually be returned undelivered. In the present case, the letter was delivered to the right address, even though the claimant was not there to receive it on that day or for several days thereafter."
- He concluded at :
"…the correct view of the law is that an employment contract is brought to an end by a dismissal letter sent by or on behalf of the employer to the employee at his or her address, and delivered to that address, and that it comes to an end on the date of such delivery, regardless of whether or not the employee was there at that time or later on that day, or did not see the letter, for whatever reason, until a later date."
- Purely as a matter of contract law, I agree. Lloyd LJ's conclusion is consistent with all the contract cases to which I have referred.
- The leading judgment in the Supreme Court was that of Lord Kerr. He pointed out that the phrase "effective date of termination" was a term of art; and that the case was not one in which the contract had been terminated by notice (unlike our case). In upholding the decision of the Court of Appeal Lord Kerr emphasised that the phrase was contained in legislation designed to protect workers' rights and that what the court was concerned with was the period available to an employee to present a claim to the tribunal. He explained at :
"Underlying both decisions (although not expressly articulated in either) is the notion that it would be unfair for time to begin to run against an employee in relation to his or her unfair dismissal complaint until the employee knows—or, at least, has a reasonable chance to find out—that he or she has been dismissed. This is as it should be. Dismissal from employment is a major event in anyone's life. Decisions that may have a profound effect on one's future require to be made. It is entirely reasonable that the time (already short) within which one should have the chance to make those decisions should not be further abbreviated by complications surrounding the receipt of the information that one has in fact been dismissed.
These considerations provide the essential rationale for not following the conventional contract law route in the approach to an interpretation of section 97. As Mummery LJ said, it is a statutory construct. It is designed to hold the balance between employer and employee but it does not require—nor should it—that both sides be placed on an equal footing. Employees as a class are in a more vulnerable position than employers. Protection of employees' rights has been the theme of legislation in this field for many years. The need for the protection and safeguarding of employees' rights provides the overarching backdrop to the proper construction of section 97."
- He concluded at :
"We do not consider, therefore, that what has been described as the "general law of contract" should provide a preliminary guide to the proper interpretation of section 97 of the 1996 Act, much less that it should be determinative of that issue. With the proposition that one should be aware of what conventional contractual principles would dictate we have no quarrel but we tend to doubt that the "contractual analysis" should be regarded as a starting point in the debate, certainly if by that it is meant that this analysis should hold sway unless displaced by other factors. Section 97 should be interpreted in its setting. It is part of a charter protecting employees' rights. An interpretation that promotes those rights, as opposed to one which is consonant with traditional contract law principles, is to be preferred."
- As Laws LJ put it in Rabess v London Fire and Emergency Planning Authority  EWCA Civ 1017 at :
"… the interpretation of section 97 [is] an autonomous issue unchallenged by the conventional or general principles of the law of contract."
- I do not read Lord Kerr's judgment as casting any doubt on the common law principles which he summarised at  (although he was careful to say at  that he did not endorse the way that the argument had been presented). Indeed he cited with approval Lord Hoffmann's statement in Johnson v Unisys Ltd  UKHL 13,  1 AC 518 that:
"At common law the contract of employment was regarded by the courts as a contract like any other. The parties were free to negotiate whatever terms they liked and no terms would be implied unless they satisfied the strict test of necessity applied to a commercial contract."
- Likewise in Geys v Société Générale, London Branch  UKSC 63,  ICR 117 the Supreme Court applied the ordinary principles of the common law both to the implication of terms into a contract of employment and also to the question when a repudiatory breach of that contract took effect. The case was, again, one of summary termination. Lady Hale said at :
"Whatever the test to be applied, it seems to me to be an obviously necessary incident of the employment relationship that the other party is notified in clear and unambiguous terms that the right to bring the contract to an end is being exercised, and how and when it is intended to operate. These are the general requirements applicable to notices of all kinds, and there is every reason why they should also be applicable to employment contracts. Both employer and employee need to know where they stand. They both need to know the exact date upon which the employee ceases to be an employee."
- This case dealt with two questions: (a) was it necessary to give notice at all under the particular PILON clause in the contract and (b) what should such a notice state. It was the first of those questions which the Supreme Court answered affirmatively. The employee had to be "notified". In other words, what was necessary was for notice to be given before the contract could be said to have come to an end. But Lady Hale was not carving out some special rule for contracts of employment. On the contrary, she said that the requirements were "general requirements applicable to notices of all kinds." In addition, Geys was not concerned with the time at which notice was given or was treated as having been given. There was in that case a contractual provision deeming notice to have been given on the second day after posting. It was that which governed the time at which the notice was given; and none of the Justices saw any problem with that. Moreover, it was not suggested in Geys that the effect of the notice was suspended for a period in which Mr Geys had the opportunity to read it. Indeed no term to that effect could have been implied because it would have been inconsistent with the express terms of the contract about deemed receipt. Thus I do not agree with Proudman J that Geys requires notice to be "communicated" in the sense in which she uses that expression. All that Geys says is that notice must be given. Of course the deeming provision in Mr Geys' contract did not dispense with the need to give notice, not least because unless and until notice was given there was nothing for the deeming provision to bite on. In Wang v University of Keele UKEAT/223/10,  ICR 1251 the EAT applied the common law (including cases relating to notices to quit) in deciding when a notice period began to run. In addition, as Ms Stout pointed out, section 179 of the Employment Rights Act 1996 contains a comprehensive code for the service of notices under Part XI of the Act (which applies to redundancy) which clearly envisages the valid service of notices even though the recipient has not read their contents. Although this is not directly relevant to this case it does show that there is no repugnancy between the valid service of a notice which has not been read and an employment contract. In my judgment, therefore, Geys does not compel an answer to the question when is notice effectively given. As we have seen, in many areas of the law contracts work perfectly well on the basis that notice is given when the notice reaches its intended destination. I do not consider that the test of necessity compels a different result in the case of a contract of employment.
- But be that as it may, what was in issue in Gisda Cyf and Geys was summary termination and not termination by notice. Summary termination takes effect immediately. But where a contract is terminated by notice, it terminates when the notice expires, and not at the date when the notice is given. Thus the effective date of termination of Mrs Haywood's contract of employment for the purposes of the Employment Rights Act was neither the date when a letter arrived at her home, nor the date when she opened and read it. It follows that she had the full period of three months (and more) in which to present a claim to the employment tribunal. She knew when she read the letter the exact date on which her employment would terminate. Accordingly the policy considerations which underpin decisions about summary dismissal do not apply to her.
- Gisda Cyf v Barratt is distinguishable for another reason too. The effective date of termination starts time running for a limitation period for the taking of an initiative by the former employee. Policy reasons dictate that the employee should have the full period accorded by statute. The contractual termination of a contract by notice in accordance with its terms requires no action by the employee. Either the contract is validly terminated or it is not.
- It is also noticeable that even in cases that turn on the ascertainment of the effective date of termination there is an asymmetry between notice given to an employee and notice given by an employee. In the latter case a series of decisions in the EAT hold that notice is given to an employer when it is received, whether it is read by a relevant person or not: George v Luton BC EAT/0311/03/RN; Potter v RJ Temple plc (2003) UKEAT/0478/03/LA; Horwood v Lincolnshire (2012) CC UKEAT/0462/11/RN (I note the decision to the contrary in Vasella Ltd v Eyre (2012) UKEATS/0039/11/B1, which decided that an employee's "immediate" resignation by letter took effect from the date of the letter and not from the earlier date when the letter was read. That does not, in my judgment, detract from the general principle). Since all these decisions turn on the identification of the effective date of termination under section 97 they do not directly bear on the issue in his case. Nor, in my judgment, does the decision of the EAT in Wang v University of Keele which concerns the computation of the period of the notice rather than the date on which it was given.
- What is in issue in our case is the date when notice was given in accordance with the terms of the contract. That, as I see it, is a question of the common law rather than one of statutory interpretation. It turns on the interpretation, as a matter of contract, of the statement in clause 19 of the contract that "this employment may be terminated by you or [the Trust] by the notice period as set out in Section 1".
- As I have said the common law cases all point in the same direction, and in this respect I do not consider that contracts of employment are any different. Of course it is distressing for someone to lose their job, but is it any more distressing than losing one's home? Moreover, whereas there is an asymmetry in the cases concerned with the effective date of termination, clause 19 of the contract applies to employer and employee alike. Its meaning must be the same whether it is the employer or the employee who give notice.
- In addition, even in the case of a personal contract like a contract of employment there is a need for a reasonable degree of certainty about the date when a notice is given. In Geys Lady Hale stressed the importance to both parties of knowing the exact date upon which the employee ceases to be an employee. The date of posting a letter can be readily ascertained by means of the post mark. If a letter is sent by recorded delivery the date of delivery can be ascertained from the signed receipt. The date of delivery of a letter sent by ordinary post can be ascertained with reasonable certainty because of the ordinary course of post (although I acknowledge that the common law presumption is rebuttable by contrary evidence). However, if the date of giving notice depends on what the recipient does with the letter once it arrives at its intended destination there is no certainty at all. Must the employer continue to pay the employee's salary? Absent PILON must the employee turn up for work? Does the employee have a duty to read correspondence from her employer? Does the employee have a duty to inform the employer when she actually opened and read the letter? If absent from home, must the employee explain to the employer why she was absent? What if there is a dispute about the validity of her reason for absence? If the employee is away from home for a protracted period is the employer prevented from giving any notice at all? These questions do not, in my judgment, arise if there is a clear and workable rule about the date when notice is given. In addition, Mrs Haywood and the Trust both knew the exact date on which her employment ended: it was 15 July 2011.
- In my judgment 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. I would therefore hold that notice was given when either (a) the letter sent by ordinary post arrived at Mrs Haywood's home or (b) the date (26 April 2011) when her father-in-law fetched the recorded delivery letter from the sorting office and left it for her at home. In either case that was before 27 April.
- It follows that I would allow the appeal. The remaining issues do not, in my judgment, arise. However, had they arisen, I would have agreed with Proudman J.
Lady Justice Arden:
- I am grateful to Proudman J and Lewison LJ for their judgments, and I will use their definitions and I will not repeat the case references which they have already given. I agree with them on the issues on which they agree for the reasons which Proudman J gives. On the one issue on which they do not agree, that is, the issue of the time when the appellant's termination of the respondent's employment contract ("the Contract") took effect, in agreement with Proudman J, and in respectful disagreement with Lewison LJ, I consider that the judge was right.
- However, I associate myself with the criticism made by Lewison LJ in paragraph 76 above about the form of the judge's judgment. There is great pressure of time in the county court, and this was a heavy case. But even bearing those points in mind, the judgment left much to be desired. I hope that what Lewison LJ put so clearly and accurately in Fage v Chobani UK Ltd  ETMR 26 at  on this point will receive a wide circulation.
- The facts have already been explained. The only communication of termination that falls to be considered is that made by recorded delivery letter. The critical issue is whether the appellant gave notice by this letter to the respondent on 26 April 2011. The notification made by email cannot be shown to have been communicated before 27 April 2011 or at all for the reasons which Lewison LJ gives. The notice sent by ordinary post cannot be shown to have been communicated by 27 April 2011 because the judge made no finding of fact on that point. I leave out of account whether the letter sent by recorded delivery could have given 12 weeks' notice by the date stated in it (15 July 2011), as nothing turns on that point.
- In my judgment, there is no "Geys implied term" in this situation if by that is meant that Geys establishes that the appellant must have communicated notice of termination to the respondent. I agree with Lewison LJ that the decision of the Supreme Court in that case is not authority on the question when a notice is given. On the other hand, it is important to note that in Gisda Cyf, the Supreme Court left open the question of when, in the absence of an express provision, a contract would be terminated as a matter of the general law. In agreement with Lewison LJ, I consider that the date when the notice in the letter takes effect is governed by the general law.
- My reasons, amplified below, may be summarised as follows:
(1) The Contract contains an implied term that the appellant and the respondent could give notice to each other under it in writing or orally, and that, if either of them gave notice in writing, that notice could be sent by post.
(2) If it was sent by post, however, to be effective it still had to be received.
(3) Receipt of a notice can still occur even if the recipient never reads it and destroys it.
(4) The fact that the letter by the intervention of Mr Crabtree reached its destination does not mean that the respondent received it at the time that Mr Crabtree left it at her house. Rather the position under the general law is that the fact of delivery gave rise to a rebuttable presumption of receipt.
(5) The judge in effect held that she had shown that she had not received it until 27 April 2011. This was a finding of fact that he was entitled to make.
(6) 12 full weeks' notice excluding that date would expire on the respondent's 50th birthday so she became entitled to her pension increment payable on that date.
- I take those reasons in turn. A term can only relevantly be implied into a contract if it is necessary to do so. A notice could obviously be oral and face-to-face. But, due to the exigencies of human life, that might not always be possible. So it is necessary to imply a term that notice could be given by post.
- It is, however, a separate question when that notice is effective. The court cannot imply a term that it should be effective on a particular date because, if a notice is given by post, there are many options as to when it can be said to be served. To take the obvious options, it could be the date when the letter is placed in the post or the date on which a letter is received or the date which it would be received in the ordinary course of post or the date falling a specified number of days after posting. Nor is there any provision about when a notice left at the property is to take effect. However desirable it may be for parties to have a fixed and immutable rule as to when notice takes effect, the court cannot write such a term in for the parties. They must include the desired term in their contract, which, for the reasons explained by Proudman J, is not achieved by clause 19. So the court needs to go back to the general law.
- Clearly if the postman gives it to the person to be notified or a person who is that person's agent (for example, a secretary or housekeeper for the intended recipient), there is no problem. It is given to the recipient at that time.
- I should add, in respectful disagreement with Lewison LJ, I do not consider that Mr Crabtree was the respondent's agent when he received the letter from the Post Office or took it to her house. There was no argument on this at the hearing or finding by the judge. His witness statement is consistent with his having acted on his own initiative. He was there to check the property was secure, to remove the post from sight and to water the plants. Nor was he the agent of the Post Office so that the letter did not arrive at the respondent's home by post.
- I now move to my second and third points: the notice has to be received even if sent by post and conversely receipt can occur even if the recipient never opens the letter. I venture to think that I am now approaching the fork in the road where I take one path and Lewison LJ another. The difference in approach between Lewison LJ and myself is that, as I see it, the authorities establish that, if a notice is physically delivered to a person's home, it is not necessarily received by him.
- In my judgment, the position under the general law is that when a letter is shown to have been sent to a person's last known address, and to have been delivered there (as where it is sent there by recorded delivery post, signed for and left there), the law would presume unless the contrary was shown that the party to whom the notice was addressed would have received it. But it is a rebuttable presumption (see, for example, in support of this proposition the observations of Lord Abbott CJ and Parke B cited at paragraphs 85 and 86 above). What happens in that situation is that the evidential burden shifts to that person to show he or she had not received it (it might after all have been eaten by the dog or swept away by a visiting plumber). In dealing with the matter that way, the law is not asymmetric. It works in the same way for both the employer and the employee.
- In Freetown Ltd v Assethold Ltd  1 WLR 701, which was not cited to us by the parties, this Court (Sir Andrew Morritt C, Rix and Patten LJJ) unanimously held that the common law rule required receipt of a notice sent by post and that the effect of section 7 of the Interpretation Act 1978 changed the common law by raising a presumption of receipt where a notice was sent in the ordinary course of post. This Court made the important point that section 7 struck a balance between the interests of the person serving the notice and the interests of the person receiving it. To explain these points, I must first set out section 7 of the Interpretation Act 1978. This provides:
Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expression "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
- The principal issue in Freetown was whether a "contrary intention" in section 7 was shown by section 15(1) of the Party Wall etc Act 1996, which I need not set out. It was not a case which turned on applying the rule applicable under the general law, and, while I do not treat these matters as binding on us, the judgment of Rix LJ contains some helpful observations on that matter and on section 7, which was cited to us. Rix LJ, with whom the other members of the Court agreed held:
 It may be observed that section 7 is a complex alteration of the common law rule which requires receipt to effect service. Instead, s 7 deems service to be effected at the time the posted document would be received in the ordinary course of the post. That presumption remains rebuttable, but the burden of doing so lies on the addressee. Another condition of the statutory refinement, however, is that the presumption only operates if a letter containing the document to be served has been properly addressed, pre-paid and posted ("by properly addressing, pre- paying and posting a letter containing the document"). The burden of proving that condition lies on the sender. The section seeks to answer various problems that might arise out of the posting of a letter, and to balance the interests of both the server and addressee. The ultimate formula, however, is to maintain that part of the common law rule which requires receipt, but to deem receipt to take place when would the letter be delivered in the ordinary course of post, subject to the right in the addressee to prove otherwise.
 So, is there anything about the language or effect of section 15 which would be incompatible with section 7, if the latter section is imagined as potentially incorporated in the Act? Plainly, there is nothing in the express language which is any way incompatible. On the contrary, everything about that language points in the direction of service taking effect on receipt. First, that is the common law rule against which any statutory language must be measured. Secondly, the section speaks of service, which prima facie as a matter of language points to receipt ("A notice . . . to be served . . . may be served . . ."). Thirdly, this requirement built into the concept of service is further emphasised by speaking about service on a person ("may be served on a person"). One would not naturally speak of serving a document on another person by long distance. Fourthly, s 15(1)(a) plainly requires such service on a person, for it speaks of the method "by delivering it to him in person". I find it hard to conceive that such a method does not involve receipt by that person. Of course, such a person may decline receipt by casting it from him, but if a notice is delivered by person to another person, I do not see that it can be properly said that the person to whom the notice is delivered can say that he has not received it.
- It is important to observe that a notice which arrives at a person's home may not come to her attention through no fault of that person. Under the rule which Lewison LJ has held to be part of the common law (see paragraph 123 above), she could be treated as having received the notice from that moment. The notice could, to give yet another example, have been left on the doorstep and blown away. That would be a particularly hard result in an employment situation, particularly in a case such as this, given the overwhelming impression given by this Contract, with, for example, its detailed terms about redundancy, and its implied term that the parties were to co- operate with each other in fulfilling the Contract. As Mr Brown submits, that term is supportive of the overall position for which he contends. After all, an employer can protect itself by a suitable term in the contract of employment or using a method of delivery that requires the employee to receive the notice and certainly not leaving the notice to the very last minute as in this case.
- In Freetown, Rix LJ went on to observe that to deem service of a notice to occur when the notice has not been received is "essentially unfair", referring among other cases to FP (Iran) v Secretary of State for the Home Department  Imm AR 450, at 61, 74 a decision under the Immigration Rules, to which I was a party, where the Secretary of State sought to rely on a notice that had been given to an applicant who never received it.
- I appreciate that in special circumstances Parliament enacts that this shall be the rule: see, for example, section 196(4) of the Law of Property Act 1925, which provides:
(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of [Part 3 of the Postal Services Act 2011]) concerned] 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.
- But these are provisions enacted for specific reasons by Parliament in order to modify the common law, which, as Rix LJ indicates, sought to balance the parties' interests. Parliament has not intervened in that way in employment law as sections 97 (considered by the Supreme Court in Gisda Cyf) and 179 ERA (considered in the next paragraph) show.
- Section 179 ERA, so far as relevant, provides:
(1) Any notice which under this Part is required or authorised to be given by an employer to an employee may be given by being delivered to the employee, or left for him at his usual or last-known place of residence, or sent by post addressed to him at that place.
(4) Any notice which, in accordance with any provision of this section, is left for a person at a place referred to in that provision shall, unless the contrary is proved, be presumed to have been received by him on the day on which it was left there.
- While we are not concerned with a statutory redundancy notice to which section 179 applies, the operation of what I consider to be the position under the general law can be illustrated by reference to the statutory presumptions in sections 179 ERA and section 7 of the Interpretation Act 1978.
- There is no provision in section 179 that notices are to be treated as received on arrival at a person's address. One of the methods by which a statutory redundancy notice may be given is by post. In those circumstances, section 7 of the Interpretation Act 1978 will have the effect that, if the notice is proved to have been properly addressed and posted, with postage pre-paid, it will be deemed to have been served, given or sent at the date when the letter would be delivered in the ordinary course of post unless the contrary is proved. Likewise, if the notice was left for an employee at his usual or last-known place of residence, it would be open to him to show that he did not receive it because section 179(4) creates a rebuttable presumption that it was not received "by him" (though it would be sufficient if it had been received by his agent).
- My analysis of the law is consistent with the citations which Lewison LJ gives in paragraphs 85 and 86 above. It is also consistent with The Brimnes (a charterer could not say that it had not received a notice sent to its offices and physically received there in office hours). Actual notice of the contents is not necessary. The notice would still have been received if the charterers had shredded it not having read it (see per Rix LJ in Freetown at  above, and per Lord Denning MR, Edmund Davies LJ and Megaw LJ in the passages cited at paragraphs 96 to 98 above). The citation from Holwell Securities Ltd v Hughes in paragraph 89 above addresses the proposition that under the general law a notice could be given at the moment of posting. Although Ms Stout submits that on the true interpretation of Clause 19 a notice should be treated as given when it is posted, I agree with Lewison LJ that that interpretation is inconsistent with the context; nor does the special rule established in Henthorn v Fraser  2 Ch 27 about acceptance of offers (which may occur at the moment of posting) apply to a notice to terminate. Stephenson v Orca (paragraph 82 above), as Proudman J explains, is dealing with a notice given under section 196 of the Law of Property Act 1925, under which notice, other than one returned as undelivered, is deemed to be given when it would be delivered in the ordinary course of post, and the observations of Scott J quoted in paragraph 90 above are to be read in that context. In Doe d. Neville v Dunbar (paragraph 91 above), the notice to quit was personally served on the tenant's servant, and, as the servant was regarded as his agent, the case did not raise any question as to receipt. But there had to be service on the servant: that was the point of the case. In Papillon v Brunton, the judges found that the notice was given in business hours when the agent ought to have been present, but in any event, Pollock CB made it clear that the case turned on a point specific to landlord and tenant. The passage quoted at paragraph 95 above from Tanham v Nicholson is dealing with loss of the notice after the notice has been received by the tenant (who in that case had a mental disability) or his agent, not its loss before it can be said to be so received. I intend no disrespect but I do not consider that I need deal with the tentative opinion from the judgment of Russell LJ in Holwell cited at paragraph 100 above. Certainly, Kinch v Bullard (paragraph 102 above) was decided on the basis that section 196 of the Law of Property Act 1925 applied. Wilderbrook Ltd v Olowu (paragraph 104 to 105 above) turned on the construction of a contractual provision for the service of notices and does not establish any principle relevant to this case.
- I see nothing in the authorities to the effect that once a notice has been delivered to a person's home, there is an irrebuttable presumption that it was received by that person. I therefore respectfully do not agree with Lewison LJ that the cases all point one way or with the conclusion of Lloyd LJ cited in paragraph 110 above. Furthermore, as I read them, the decision of the EAT in Brown v Southall and Knight  ICR 617 (Slynn J presiding) and Hindle Gears Ltd v McGinty  ICR 111 (Waite J presiding), both cases of unfair dismissal, applied the law applicable to contractual dismissal and support the conclusion to which I have come.
- Therefore, it seems to me that, since there is no finding that Mr Crabtree had authority to receive the notice of termination for the respondent, the judge was entitled to look to the time when the respondent found the letter containing the notice and to hold that in all the circumstances the respondent did not receive the notice, which seems to me to mean accept delivery of it, until 27 April 2011. The respondent had arrived home in the early hours of the morning after a long, delayed and rerouted flight from Egypt, and so she was not likely to have looked for post at that point. The appellant knew she was due to be in Egypt or at least that there was a substantial risk that she would not be at home when the letter was expected to arrive. The letter was not delivered by the Post Office but arrived at her house due to the fortuitous action of Mr Crabtree, whom it was not argued was for this purpose her agent.
- 27 April was both the date she arrived home and the date she read the letter. If she saw it on arrival at 1.30am, that would be the time when she received it. But the only holding is that she received it about 8am that day. The law takes no account of the parts of the day and so the judge did not have to make a choice between those two times. I accept that she did not need to read the letter, but she (or agent) needed to receive it.
- This was an exceptional case because cases do not generally turn, as this one does, on the precise date of receipt of a notice and receipt usually occurs shortly after delivery.
- For these reasons, I agree with Proudman J that this appeal must be dismissed.
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