A letter that sets out one months’ notice should not be automatically assumed as a letter of resignation, an EAT Judge has confirmed.
In the case of East Kent Hospitals University NHS Foundation Trust v Levy, Judge Jennifer Eady dismissed the appeal and confirmed the tribunals earlier decision that the employee had in fact been unfairly dismissed.
In this case, the employee was offered a new role in the radiology department, as a result of this she submitted a letter to her line manager giving “one months’ notice”.
After the claimant had become unhappy in her current position, she successfully applied for a role in the radiology department – on June 10, 2016 – subject to pre-engagement checks.
Her letter to her manager, Gorton Davey read: “Please accept one month’s notice from the above date”.
On the same day, her manager responded saying: “Thank you for your letter… in which you tendered your notice of resignation. I can confirm that your last day of work within Health Records will be 8th July 2016. I would like to take this opportunity in thanking you for your hard work, dedication and contributions to a highly successful team over the years, and I wish you every success with your future employment.”
However, on 16th June, the claimants new job offering was retracted on the grounds of her poor attendance record. Because of this, Levy attempted to withdraw her notice, but her manager refused and wrote to her to confirm the date of termination, addressed the issue of outstanding holiday entitlement and filled out an employee termination form.
Mr Gorton-Davey wrote: “It is with regret that I cannot accept your request and as a result, your last day of work with us will be on Sunday, 10 July 2016. I also need to inform you that due to the number of days annual leave taken already this financial year, the Trust will be looking to recover 88 hours pay from you”.
As a consequence of this, Levy brought a claim of unfair dismissal against her employers. In April 2017, the Employment Tribunal held in favour of the claimant and held that her employers had unfairly dismissed her.
Her employers responded arguing that the wording used by Levy in her letter of notice was unambiguous. The Employment Tribunal rejected this response and said the letter could have been either a notice of intended transfer or a notice of termination. Stating that the employees’ letter would lead a reasonable observer to agree that the claimant was not ending her employment but simply making her manager aware that she intended to accept the offer.
The Tribunal also took into consideration the conditions of the claimant’s letter in that she was unaware that her employment history had potential to affect the conditional offer and that she needed to work to support herself and her family.
East Kent Hospitals University NHS Foundation Trust appealed and failed. At the EAT, Judge Eady expressed: “…once it became apparent that the offer of a position in the Radiology Department had been withdrawn, and the claimant was seeking to withdraw her notice of departure from Records, the respondent’s position was that the claimant’s employment must come to an end.
“Given its findings of fact, however, I do not consider the [employment tribunal] erred in finding that this, in context, amounted to a dismissal and not simply the acceptance of a resignation.”
It is important to note, that the events in this case are rare. However, the circumstances of this case should serve a reminder to all employers to ensure a clear understanding when an employee resigns or offers to give notice of resignation. Employers should attempt to understand why the employee is resigning, the notice they intend to serve and clarify when the employment relationship will terminate.
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