In East Kent Hospitals University NHS Foundation Trust v Levy, the Employment Appeal Tribunal (EAT) has held that a tribunal was entitled to find that an employee’s letter to her employer giving ‘one month’s notice’ was not a letter of resignation. The context for the letter was that the employee was expecting to take up a different role in another department and the tribunal was entitled to read it as giving notice of an intention to leave a particular role rather than to terminate her employment.

Facts

Ms Levy worked for East Kent Hospitals University NHS Foundation Trust (the Trust) as an administrator in the Records Department. She experienced difficulties at work and applied for an alternative position in the Radiology Department, which she was offered subject to pre-appointment checks. Having received that offer, and following an altercation with a colleague in the Records Department, Ms Levy handed a letter to a manager which stated “please accept one month's notice from the above date”. Her manager replied the same day, accepting Ms Levy’s ‘notice of resignation’ and referring to her last working day within the Records Department. He did not complete a staff termination form, made no reference to Ms Levy leaving her employment, and did not address any other termination issues such as outstanding annual leave.

Six days later, the offer of a position in the Radiology Department was withdrawn. Ms Levy subsequently sought to retract her notice but, the manager refused. He wrote to Ms Levy to confirm the date of termination of employment and to address the question of outstanding annual leave, and went on to complete a staff termination form.

Ms Levy sought to bring a claim of unfair dismissal and the employment tribunal had to decide whether Ms Levy resigned or was dismissed.

Decision

The employment tribunal found that Ms Levy had been dismissed by the Trust, on the basis that Ms Levy’s letter did not identify the subject in respect of which notice was being given – it could have been either a notice of intended transfer or notice of termination. Given the ambiguity, the words had to be construed in context, which included the fact that Ms Levy was unhappy in the Records Department, and the fact that she had a conditional offer for a new role in another department.

The EAT agreed with the Tribunal. The wording of the letter was ambiguous - Ms Levy’s use of the word ‘notice’ could have been referring either to her leaving the Records Department or to leaving the Trust’s employment. Even if there were no ambiguity, the tribunal had made a permissible alternative finding that, in the special circumstances of the case, where Ms Levy was expecting to leave one job with the Trust and take up another, the letter had to be read in that context.

The EAT rejected the Trust’s argument that the phrase ‘giving notice’ can only ever refer to termination of employment.

Further, the manger’s actions in response to the letter giving notice – such as his failure to take the kind of steps that he would have been expected to take if he had really understood that Ms Levy was leaving her employment – indicated that he understood the letter as notifying an intention to leave the Records Department rather than a resignation from her employment with the Trust.

As such, the Trust dismissed Ms Levy. She had not resigned.

Comment

A key issue for the Trust in this case was that there appears to have been no consideration given at the time to the question of whether there was a valid resignation: was the employee really resigning from her employment (as opposed to her role in a particular department)?

The factors that the EAT took into account, which lead it to conclude that there had not been a valid resignation, are instructive for employers finding themselves in similar situations:

  1. Is the notice to terminate the employment relationship clear and unambiguous?
  2. If it is not, are there special circumstances that exist at that time which indicate an intention to terminate the employment relationship?

It will therefore be important for employers to carry out this objective assessment, even when an opportunity appears to present itself for the removal of a difficult or problematic employee (as was seemingly the case in this instance).