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05 November 2018

126: Employment Appeal Tribunal considers whether employee’s employment was terminated by resignation or dismissal

Notice of termination of employment should be clear and unambiguous and properly understood by both parties. In East Kent Hospitals University NHS Foundation Trust v Levy, the Employment Appeal Tribunal (the EAT) had to consider whether an employee had given clear and unambiguous notice of resignation, or whether she had been dismissed by her employer.

Ms Levy was employed by East Kent Hospitals University NHS Foundation Trust as an administrator in the records department. She had a difficult relationship with some of her colleagues, and concerns had been raised about her absence record. Ms Levy was successful in an application for a position in the radiology department, subject to pre-appointment checks. On 10 June 2016, after receiving her conditional offer from the radiology department, Ms Levy handed a letter to her manager which stated simply ‘Please accept one month’s notice from the above date.’ The manager responded on the same day accepting her ‘notice of resignation’; noting that her last working day within the records department would be 8 July 2016; and wishing her success in her future employment.

Shortly afterwards, Ms Levy was informed that the radiology department was withdrawing its offer due to her poor absence record. She asked her manager to accept a retraction of her resignation, but he refused to do so. In a letter dated 24 June 2016, Ms Levy received confirmation of her last day of employment and was informed that the Trust was seeking to recover 88 days’ holiday pay. Her manager also completed a staff termination form. When Ms Levy brought a claim for unfair dismissal, the Trust argued that she had not been dismissed, but had resigned on 10 June 2016.

The Employment Tribunal held that Ms Levy had been dismissed. Her letter of 10 June was not clear and unambiguous. However, given the surrounding context of this letter, a reasonable observer would have concluded that she was not terminating her employment, but giving notice that she intended to accept what was at that time a conditional offer of a new internal role. For example, her manager knew that she was unhappy in the records department; that she needed to work to support her family and her father; and that she had received the conditional offer. In addition, on receipt of the notice letter, Ms Levy’s manager had not completed the staff termination form or dealt with matters such as holiday pay. In contrast, once he had decided subsequently that her employment should cease, he had dealt with these issues promptly. The Tribunal concluded that Ms Levy’s manager did not understand her 10 June letter to be resignation from her employment, and that she had been dismissed by the Trust’s letter of 24 June 2016.

The EAT dismissed the Trust’s appeal. The language used in Ms Levy’s letter of 10 June was ambiguous and the Employment Tribunal had been entitled to find that, viewed objectively, the Trust had reasonably understood that the notice related to her role in the records department, not her employment by the Trust.

This case illustrates the importance of ensuring that any communication relating to resignation of employment is clear and unambiguous. It is also worth noting that a Tribunal will consider how notice would be construed objectively, that is, by a reasonable recipient in the light of the particular circumstances known to the recipient at that time. Employers should therefore always establish why an employee is resigning, the length of notice, and the date of termination.

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