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East Kent Hospitals University NHS Foundation Trust v Levy
An employee’s letter giving ‘notice’ wasn’t an unambiguous resignation.
Ms Levy worked as an administrator in the Records department of an NHS trust. There were various issues at work, including a difficult relationship with a co-worker, and her absence record had led to a verbal warning. Unhappy in this role, she successfully applied (subject to pre-engagement checks) for another position at the trust in the Radiology department and on 10 June she wrote to the trust’s Operations Manager in the following terms:'Please accept one month's notice from the above date'. He responded accepting her ‘notice of resignation’ and stating that her last day of work in the Records department would be 8 July. He did not complete the usual forms which would be used for those leaving their employment with the trust and he provided a reference regarding her work to the Radiology department. Ms Levy subsequently discovered that her application for the Radiology job had been withdrawn (due to her absence record). She immediately contacted HR to ask about withdrawing her notice and was told that this was at the discretion of her manager. HR advised the manager that there was no obligation to accept a retraction of a resignation. The manager believed that because of her absence record, Ms Levy wouldn’t be offered another position with the trust if her role was openly advertised and she was required to go through a competitive interview process for it. H wrote to her confirming that her employment would end at the end of her notice period. Ms Levy brought an unfair dismissal claim which the hospital resisted on the basis that she had resigned.
The tribunal held that the notice was ambiguous as to whether she was giving notice to leave the Records department or to leave her employment. On an objective analysis, it was not a resignation - the termination was therefore at the employer’s behest and she had been unfairly dismissed. The hospital appealed.
The EAT dismissed the appeal.
The question to be asked, said the EAT, was ‘who really ended the employment?’
Although the word ‘notice’ in the employment context might generally signify an unambiguous notification of termination of the contract, that was not so here. Ms Levy had an offer of a position within another department and her ‘notice’ could equally be taken to refer to her notification of her departure from the Records department. Given the ambiguity arising from her letter giving notice, the tribunal had correctly applied an objective test when determining how the words used would have been understood by the reasonable recipient of the letter. It had looked at the employer’s immediate response to the letter and had permissibly found that Ms Levy’s notification had been understood to relate to her departure from the Records department and not from her employment more generally.
The trust tried to argue that events following Ms Levy’s original letter – her reference in her retraction to her ‘notice of resignation’ – should have been considered by the tribunal in its objective analysis. This was rejected by the EAT which cautioned against taking account of subsequent events unless they are genuinely explanatory of an earlier intention or shed some light on them. That was not inevitably so in this case.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2018/0232_17_0506.html
This is a fact-specific case but is a timely reminder to employers, particularly larger entities where staff may transfer internally between teams and departments, to clarify an employee’s intention when they submit a notice of resignation.