The Employment Appeal Tribunal (EAT) considered whether an employee giving ‘notice’ to take up a job in a different department amounted to a resignation.
East Kent Hospitals University NHS Foundation Trust v Levy, UKEAT/0232/17
The claimant had received an offer to take up a position in a different department, subject to pre-engagement checks. She handed a letter to a manager, giving one month’s notice. Her ‘notice of resignation’ was accepted and her final working day in the department was confirmed. However, the manager did not take any further action in relation to the usual issues arising on termination, such as completing a staff termination form or dealing with any outstanding annual leave.
The offer of a new position was subsequently withdrawn as a result of the claimant’s sickness absence records. She then sought to retract her notice, but the respondent refused her request and proceeded with arrangements for the termination of the claimant’s employment. Her claim for unfair dismissal was upheld by an employment tribunal, which found that she had been dismissed by the respondent. The ‘notice’ was ambiguous but the tribunal concluded that objectively, the letter was only informing her employer of her intention to accept an offer of a new role within the organisation.
The EAT dismissed the respondent’s appeal. It agreed that the wording of the claimant’s letter was ambiguous and that the ‘notice’ could relate to either leaving the department or leaving the respondent’s employment. The letter had to be read in the context of the claimant’s conditional offer of a new role. Additionally, the manager’s response to the letter indicated that he understood it to be a notification of the claimant’s intention to move departments rather than resign.
In this case, it appears that the respondent took advantage of an ambiguous situation to try and secure the departure of an employee with whom some issues had previously arisen. However, it was clear from the manager’s actions in response to her notice that he understood she was only intending to move to a new department, and had not intended to resign her employment. It is advisable for employers to have a clear policy on the applicable arrangements for internal transfers, to avoid any such misunderstandings.