The EAT in East Kent Hospitals University NHS Foundation Trust v Levy has held that a tribunal was entitled to find that an employee’s letter to her employer giving ‘one month’s notice’ was not a letter of resignation.
The claimant worked for the Trust in the Records Department. Having experienced difficulties at work, the claimant applied for a different role in the Radiology Department. The claimant received an offer for that role subject to the usual pre-appointment checks. The claimant handed a letter to her manager giving ‘one month’s notice’. The claimant’s manager replied on the same day accepting the ‘letter of resignation’ and stated the last working day in the Records Department. The letter did not make any reference to the claimant leaving her employment nor did it make reference to any other termination issues such as annual leave. Six days later the claimant’s offer for a role in the Radiology Department was withdrawn due to her sick leave record. The claimant tried to retract her notice, but her manager refused (after taking advice from HR) and wrote to her to confirm the date of termination, addressed the issue of outstanding annual leave entitlement and completed a staff termination form. The claimant subsequently bought a claim of unfair dismissal.
The tribunal found in favour of the claimant and held that she had been dismissed by the Trust. It was a question of ‘who really ended the contract of employment?’. The Trust argued that the words used by the claimant in her letter giving ‘notice’ were clear and unambiguous, but this argument was rejected by the tribunal as the letter could have been either a notice of intended transfer or a notice of termination. The tribunal concluded that the letter would lead the reasonable observer to conclude that the claimant was not terminating her employment but notifying her manager of her intention to accept the offer.
The Trust appealed against the tribunal’s findings stating that the tribunal erred in finding the claimant’s words were ambiguous and that the tribunal ought to have had regard to the subjective views of the claimant’s manager in believing it to be a notice of termination. The EAT dismissed the appeal on the grounds that the letter had to be read in conjunction with the special circumstances of the case and that the claimant was expecting to leave one role and take on another with the same Trust. The EAT held that the tribunal was entitled to adopt an objective approach to the interpretation of the letter and further held that the actions of the claimant’s manager did not indicate that he believed that she was terminating her employment.
Howes Percival Employment Law partner Graham Irons commented;
“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.”