(i)
when the letter would have been delivered in the ordinary course of post;
(ii)
when it was in fact delivered to that address; or
(iii) when it comes to the attention of the employee and s/he has read it (or had a reasonable opportunity to do so).
The answer is (iii), ie when it is actually received by the employee and s/he has read it (or had a reasonable opportunity to read it), held the Supreme Court in Newcastle Upon Tyne NHS Foundation Trust v Haywood, upholding the Court of Appeal's decision by a majority of 3 to 2. In April 2011, Ms Haywood was told she was at risk of redundancy. She turned 50 on 20 July 2011. Redundancy after her 50th birthday would have entitled her to a considerably more generous pension than redundancy beforehand. Ms Haywood was contractually entitled to be given 12 weeks’ notice, but her contract was silent about how notice was deemed given.
On 19 April 2011, Ms Haywood went on holiday. On 20 April, her employer sent notice of termination by recorded delivery and ordinary post. She read it on her return from holiday, on 27 April.
If delivery was deemed effective before 27 April, she would have received the much lower pension. But if it was deemed effective on the day she returned from holiday and read it, she would have received the much more generous pension. The majority of the Supreme Court held there was no good reason to disturb the long-standing line of caselaw from the EAT. The notice was only deemed effective when it was read by the employee (or s/he had a reasonable opportunity to read it). Thus it was not deemed effective until 27 April, and she was entitled to the higher pension.
With thanks to Daniel Barnett's Employment Law Bulletin for providing this update.
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Employment Status: Addison Lee Couriers 17 May 2018
The Employment Appeal Tribunal (EAT) has ruled that Addison Lee couriers are workers.
With thanks to Daniel Barnett’s employment law vault for providing this case summary.
Addison Lee appealed on two grounds against the employment tribunal's determination that Mr Gascoigne, a cycle courier, was a worker within the meaning of regulation 2 of the Working Time Regulations, when logged on to the app.
First that the tribunal erred in law in finding that there was sufficient mutuality of obligation and second, that the tribunal's multi-factorial assessment that Mr Gascoigne was a worker was perverse on nine bases.
The EAT rejected both grounds of appeal, upholding the tribunal's finding of worker status and thus Mr Gascoigne's entitlement to holiday pay.
On the first ground of appeal, which although framed as an appeal based upon an error of law was actually an appeal based upon an error of fact, the tribunal correctly determined that there was mutuality of obligation between the parties when Mr Gascoigne was logged on to the app. He had to accept jobs offered to him when logged on to the app. His entitlement to log off at any time did not affect his obligation to accept work when logged on.
On the second ground of appeal the tribunal's multi-factorial assessment that Mr Gascoigne was a worker was not perverse.
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The Chartered Institute of Payroll Professionals
Payroll: need to know
cipp.org.uk
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