A letter giving one month's notice was not a resignation

When is a resignation not a resignation? In East Kent Hospitals University NHS Foundation Trust v Levy, the Employment Appeal Tribunal held that context should be considered when determining whether an employee’s apparent resignation was unambiguous.

Facts

Mrs Levy was employed by the NHS Trust in their Records department. She applied for an alternative role in the Radiology department within the same Trust and received a conditional offer. Mrs Levy sent a letter to her manager which read ‘please accept one month’s notice from the above date’.

After further information came to light, the Radiology department subsequently withdrew the offer of employment and Mrs Levy then attempted to retract the notice she had given to her manager. The Trust refused to accept this and her employment terminated at the end of her notice period. Mrs Levy brought a claim of unfair dismissal.

The Tribunal objectively questioned how the words she used would have been understood by a reasonable recipient of the letter and decided that the letter of notice was not an unambiguous resignation in the circumstances. The letter was purely a notice of her intention to accept a job within another department and not to terminate her employment with the Trust. Mrs Levy had therefore been unfairly dismissed by the Trust, which appealed the decision to the Employment Appeal Tribunal.

Decision

The EAT dismissed the Trust’s appeal and agreed with the Tribunal’s decision. The EAT held that the letter could either be read as a letter of notice from her specific role in the department or a letter of resignation from her employment as a whole. Given the ambiguity, it was necessary to consider the context in which she sent her letter and this lead them to find that her letter was only notice of departure from the Records department and not notice of termination of employment with the Trust.  

Comment

Employers have always been well advised to clarify an employee’s intentions when they resign in the heat of the moment of if there is ambiguity to an apparent resignation. This decision further highlights the risks associated with accepting notice from an employee where their resignation is not crystal clear. Employers should continue to err on the side of caution where there is uncertainty and seek clarification of the employee’s intentions so as to avoid potential liability.