Employee’s Letter Giving Notice Was Not A Resignation

In the case of East Kent Hospitals NHS Foundation Trust v Levy, the Employment Appeal Tribunal (EAT) has held that an employee’s letter to her employer giving one month’s notice did not amount to a resignation.

The Claimant worked for the Respondent as an administrative assistant in the Records Department. Following difficulties at work, the Claimant applied for a position in the Radiology Department and received a conditional offer subject to satisfying pre-appointment checks. Upon receiving the conditional offer, and following an altercation with another member of staff in the Records Department, the Claimant handed in a letter to her manager stating “Please accept one month’s notice from the above date”.

The Claimant’s manager accepted her notice the same day and referred to her last day in the Records Department. He did not complete a staff termination form which was not applicable for internal transfers but was to be used in the event an employee left the Respondent’s employment. In addition, the manager made no reference to the Claimant leaving her employment and did not purport to deal with her outstanding annual leave.

The same week, the Claimant’s conditional offer to work within the Radiology Department was withdrawn due to concerns with her sick leave record. As a result, the Claimant sought to retract her notice (in fact, referring to it as her “notice of resignation”) so that she could continue working within the Records Department.

The Respondent did not allow the Claimant to retract her notice and stated that her employment with the Trust would terminate at the end of her notice period. The Claimant’s manager then dealt with her outstanding annual leave and completed the staff termination form.

The Claimant then issued a claim for constructive unfair dismissal in the Employment Tribunal (ET). The issue the ET had to determine was whether or not the Claimant resigned or was dismissed.

The ET rejected the Claimant’s claim and found that she had been dismissed. The Respondent’s argument that the Claimant’s “notice of resignation” was clear and unambiguous was rejected. The ET held that the Claimant’s letter giving notice could have been either a notice of intended transfer or a notice of termination and therefore the intention of the letter was ambiguous.

It was further held that the Respondent was aware that the Claimant was giving notice so that she could start work in another department and therefore she was not giving notice to leave the Respondent’s employment entirely. The Respondent also understood that the Claimant had encountered difficulties in the Records Department. Therefore, the ET stated that a reasonable observer would conclude that the Claimant was simply informing her manager at the earliest possible opportunity that she would be leaving the Records Department to join the Radiology Department.

The Respondent appealed, but the EAT upheld the ET’s ruling, stating that the Claimant’s use of the word “notice” could have been taken to refer to her notification of her departure from the Records Department. Furthermore, as the Claimant’s manager had failed to follow the steps that he would have been expected to take had he believed the Claimant was resigning from the Respondent’s employment entirely, he had demonstrated that he thought the Claimant’s letter established her intention to transfer to a different department.

This case signifies the importance of employers fully understanding an employee’s intentions when they hand in a “notice of resignation”. At an early stage the employer should determine whether the employee intends to transfer to a different department or terminate their employment entirely.

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