East Kent Hospitals NHS FT v Levy - Notice and resignation

Employment Appeal Tribunal – June 2018 

The Employment Appeal Tribunal (EAT) has ruled that the intentions behind a letter of resignation should be clarified to correctly confirm if the employee does intend to leave the company.

Facts

In this case, the employee had worked in the records department for her employer for around 10 years. She had recently experienced issues with an employee and had applied for a position in the employer’s radiology department, for which she had received a provisional offer. Internal procedures stated that, if an employee wished to transfer departments, they needed to resign from their current role and then re-engage in the new position. Following a further altercation with her colleague, the employee resigned from her current position by letter.

Her manager responded on the same day to confirm her resignation. However, an issue arose when the conditional offer within radiology was withdrawn due to the employee’s sickness record, for which she had been spoken to separately by her manager on numerous occasions. As a result, the employee tried to retract her notice. Her manager contacted the company’s HR department, outlining the situation and asking if he was obligated to accept this retraction, especially in light of her absence levels. He was advised that there was no such obligation and thus denied her retraction request, confirming that she was still to leave her current position at the set date. He also advised her that she owed the company 88 hours of pay in outstanding annual leave.

The employee brought a claim to the employment tribunal (ET) for constructive unfair dismissal but was later advised to change this to a claim for unfair dismissal.

Tribunal

The ET upheld her claim.

In forming their decision, the tribunal considered who had actually ended the employment and found that it had ultimately been the employer. Although the employee had submitted her resignation letter this was the required process to move departments and it was clearly her intention to do this, therefore, this was not an act to terminate employment completely, simply to change departments.

The tribunal outlined that although the words used in the contents of the letter, specifically ‘please accept one month’s notice from the above date’ may have seemed to demonstrate an unambiguous intention to resign, the context in which they had been used gave rise to special circumstances. Although her manager argued that, in his view, the employee did wish to resign from the company overall as she had later stated she was ‘fed up’ and ‘wanted to get out’, the ET decided to dismiss this. They found that, on the balance of probabilities, a reasonable person would not have viewed the letter as termination of employment, especially as the employee had been unaware that her employment history may have affected the conditional offer in radiology.

Furthermore, the ET noted that her manager had not treated her letter as one of resignation at the time as his response had failed to address numerous matters that would normally have been expected. For example, he had not completed a staff termination form or addressed her outstanding holiday.

The employer appealed this decision to the Employment Appeal Tribunal (EAT), arguing that the language used by the employee in her resignation letter had been unambiguous. They further stipulated that, if this was not the case, an objective test should have been adopted by the ET whereby if the employer construed the language as amounting to a resignation, they should be permitted to rely upon this.

EAT

The EAT dismissed the claim, agreeing with the ET on all points.

In reaching their decision, the EAT referred to the findings in Willoughby v CF Capital plc, where the Judge had stated an employer, ‘must be satisfied that the giver really did intend to give a notice of resignation or dismissal.’

They outlined that whilst the word ‘notice’ can signify an unambiguous notification of contract termination, in this situation it could also equally be taken to refer to a notification of the employee’s departure from the specific department, before joining a new department. Therefore, they found that the employee had not intended to terminate her employment.

They also found it was clear that the employer had genuinely and reasonably believed this was the case due to the actions of her manager. Therefore, the ET had been correct in not taking his subjective views into account. 

Note for employers 

This decision reminds employers that they should always clarify with the employee what their intentions are when they resign, especially if there is any uncertainty or ambiguity. It is a good idea to arrange a follow-up meeting and speak to them to ascertain this. If the employer would prefer that the employee leave the company, they should not just jump on the chance to get them out because it may result in a claim for unfair dismissal.

Employers do not have to allow an employee to retract a resignation but in this case the employee’s ‘resignation’ could have been taken in different ways than a full termination of employment.

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