Is it Possible for an Employee to Give Notice But Not Mean to Resign?

Gareth Edwards
Partner - Employment Law | VWV
25th September 2018
Member roleInitiative member

In the recent case of East Kent Hospitals University NHS Foundation Trust v Levy, the Employment Appeal Tribunal (EAT) held that an employee's letter giving 'one month's notice' was not an unambiguous act of resignation.

The Facts The claimant, Mrs Levy, was employed in the Records Department by East Kent Hospital University NHS Foundation Trust (the Trust). Mrs Levy successfully applied for an internal position in the Trust's Radiology Department, subject to pre-appointment checks. After having been given the conditional offer, and following some form of altercation with another staff member in the Records Department, Mrs Levy handed in a letter stating "Please accept one month's notice from the above date".

On receiving this letter Mrs Levy's manager wrote back to Mrs Levy, accepting the "notice of resignation" and referring to her last working day in the Records Department. Mrs Levy's manager did not complete a staff termination form (which apply only to members of staff who are leaving the Trust's employment) and did not deal with any other outstanding issues, such as making a payment for accrued but unused annual leave. Following the completion of the pre-appointment checks, the offer of a position in the Radiology Department was withdrawn, prompting Mrs Levy to attempt to retract her "notice of resignation". The Trust refused to accept the withdrawal of her notice, stating that her employment would end at the end of her notice period. Mrs Levy made an unfair dismissal claim stating that she had not resigned.

The Employment Tribunal (ET) held that Mrs Levy's letter had been ambiguous as to whether she was giving notice to leave the Records Department or notice to leave the Trust's employment. The ET went on to find that, from the Trust's actions, it could be shown that the notice had been taken by the Trust to be notice of Mrs Levy's departure from the Records Department and therefore Mrs Levy had not in fact resigned. As a result, her unfair dismissal claim was successful.

The Decision The EAT agreed with the ET, holding that Mrs Levy's letter had been ambiguous despite the use of the word "notice". Due to the ambiguity of the letter, the ET had correctly applied an objective test by asking how the words used would have been understood by the reasonable recipient of the letter. On these particular facts, the EAT held that the ET had been entitled to find that the words used in the letter related to Mrs Levy's position in the Records Department and not to her employment by the Trust.

Best Practice It should be noted that the decision in this case turns on the facts, particularly the existence of an internal offer and the manager's actions following receipt of the letter. The decision highlights that employers should not be too eager to accept an employee's apparent resignation without considering the meaning behind it, particularly where there could be any ambiguity as to the employee's intentions.

For more information, please contact Gareth Edwards in our Employment Law team on 0117 314 5220.

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