Employee says they’ve had enough, is it a resignation?

A letter that gives one month’s notice should not automatically be interpreted as a letter of resignation, an employment appeal tribunal judgement has confirmed.

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 an 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Following the completion of the pre-appointment checks, the offer of a position in the Radiology Department was withdrawn, prompting Mrs Levy to attempt to retract her “notice of resignation”.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.

Levy subsequently brought a claim of unfair dismissal. In April 2017, the employment tribunal found in favour of the claimant because 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.

The Trust appealed the decision to the Employment Appeals Tribunal.

The EAT 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.

Lessons to Learn

Whilst the circumstances of this case are quite unusual disputes often arise over ambiguous resignations. This case serves as a reminder to ensure clarity whenever an employee resigns or offers to give notice to resign. Employers should always seek to understand why the employee is resigning, the notice they are giving and clarify when the employment will end.

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