We consider the recent decision of the Employment Appeal Tribunal (EAT) in East Kent Hospitals University NHS Foundation Trust v Levy UKEAT/0232/17, where the EAT decided whether a letter from the employee providing one month's notice should automatically be interpreted as a letter of resignation.

Facts

Mrs Levy had experienced difficulties in the records department in which she was employed at East Kent Hospitals University NHS Foundation Trust (the Trust). Mrs Levy had successfully applied for a position in the radiology department, which was subject to pre-appointment checks.

Having received her conditional offer from the radiology department, and after an altercation with another member of staff in the records department, Mrs Levy handed in a letter stating "please accept one month's notice from the above date". The manager to whom this letter was addressed responded the same day accepting Mrs Levy's "notice of resignation" and referring to her last working day within the records department. He did not complete a staff termination form (only applicable for those leaving the Trust and expressly stated not to be used for internal transfers) and made no reference to Mrs Levy leaving her employment more generally or to any outstanding issues. Subsequently the offer of employment in the radiology department was withdrawn as a result of Mrs Levy's sick leave record. Mrs Levy then sought to retract her "notice of resignation". The Trust, however, refused to agree to this and confirmed that Mrs Levy's employment would end at the end of her notice period.

Mrs Levy brought a claim for constructive dismissal in the employment tribunal (ET), which she later amended to unfair dismissal. The Trust argued that she had resigned.

Employment tribunal decision

The ET applied an objective test in deciding how the words used by Mrs Levy would have been understood by the reasonable recipient of the letter giving notice. In applying an objective test, the ET concluded that the Trust understood the words of the letter to indicate Mrs Levy’s move from the records department to the radiology department and not her resignation from her employment in general from the Trust. The Trust appealed to the EAT.

Employment Appeal Tribunal decision

The EAT held that although the word "notice" in the employment context might generally signify an unambiguous notification of termination of the contract, that was not so in the particular circumstances of this case. Mrs Levy had an offer of a position within another department within the Trust and her "notice" could equally be taken to refer to her notification of her departure from the records department.

Given the ambiguity arising from Mrs Levy's letter giving notice, the ET had correctly applied an objective test when deciding how the words used would have been understood by the letter's reasonable recipient. It had looked at the Trust's immediate response to the letter and had permissibly found that Mrs Levy's notification had been understood to relate to her departure from the records department and not from her employment generally at the Trust. In context, having regard to the fact that it was known that Mrs Levy was intending to take up another position in the Trust, the ET found that the Trust had genuinely and reasonably construed Mrs Levy's "notice" as referring to the termination of her position in the records department before she moved to the radiology department and not to the termination of her employment at the Trust.

Allowing that this was a mixed question of fact and law, the ET had not erred in its approach or in its conclusion that Mrs Levy's employment had been terminated by dismissal and not resignation.

Comment

At the heart of this case was the question of whether the employment was terminated by resignation or dismissal and who really ended the employment.

This case provides a useful reminder to ensure clarity of communication whenever an employee resigns or offers to give notice to resign. While the facts of this case were unusual, they highlight the fact that employers should always seek to understand why an employee is resigning, the notice they intend to provide and when exactly the employment will come to an end. Communications between the employer and employee will be scrutinised by the ET and employers should ensure that they act cautiously and have a full understanding of these aspects before processing a resignation.