In East Kent Hospitals University NHS Foundation Trust -v- Mrs P Levy UKEAT 0232/17/LA, the Employment Appeal Tribunal (EAT) upheld a decision by an Employment Tribunal that an NHS trust had dismissed an employee who gave a letter to her manager stating ‘please accept one month’s notice from this date’.

All the circumstances must be taken into account

It is a long established principle that all the circumstances surrounding a resignation need to be taken into account when determining if an employee has resigned. This case is a reminder that even apparently clear and unequivocal words such as ‘please accept one month’s notice’ accepted by an employer, might not amount a resignation and therefore not terminate the employment relationship. If the employment relationship comes to an end, but it has not been terminated by the employee resigning, it follows that the employer is responsible for the termination (which is likely to be unfair).

Factual background

The employee worked in the hospital records department. She applied for a post in the same employer’s radiography department and was given a conditional offer. She sent a letter giving one month’s notice to the records department manager who promptly accepted it. Shortly afterwards the radiography department withdrew their offer and the employee tried to retract her notice, but the trust would not allow this.

Factors that the EAT took into account were that the manager did not complete a termination form when she tendered her resignation from the records department, but the employee did receive an internal transfer form before the radiography job was withdrawn. The employee did not receive information such as outstanding holiday entitlement, as would be expected if this was a termination.

Taking these factors into account, the tribunal found, and the EAT endorsed, that the words used by the employee were ambiguous in relation to intent: she might have meant that she was giving notice of leaving the records department, or she was resigning from the trust. After looking at all the facts, they decided it was the former.

Implications

This decision was clearly heavily influenced by the fact that the two jobs were with the same employer, but this is not unusual.

It reminds employers that it can be necessary to scrutinise all the circumstances surrounding a resignation carefully and in particular it clarifies the need to be aware that moving departments within a trust is a specific situation and not directly comparable with leaving the employment of the trust.