A reminder for employers to be wary of unclear resignations

Written by Brabners LLP

A reminder for employers to be wary of unclear resignations! (East Kent Hospitals University NHS Foundation Trust v Levy UKEAT/0232/17)

Case law confirms that an employee’s resignation should be clear and unambiguous.  The method and procedure for giving notice to end employment is normally set out in the contract of employment between the employee and employer.  It seems like it should be straightforward, but the latest case of East Kent Hospitals University NHS Foundation Trust v Levy UKEAT/0232/17 reminds us whether there has been a valid resignation or not can be difficult to determine in some instances.

As you may know, there is no general duty on an employer to ensure that an employee who uses clear words to resign actually intended to resign. However, it was previously held in Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183 (EAT) that it may, in some circumstances, be unreasonable for words to be taken at face value – for example, when words of resignation are spoken in haste.

In the latest case of East Kent Hospitals University NHS Foundation Trust v Levy, the Employment Appeal Tribunal considered whether a tribunal had correctly held that an employee had not given clear notice to terminate her employment.  The EAT found that the employee’s employment had been terminated by her employer and its treatment of her notice as a valid resignation.

Facts of the case

Ms Levy was employed as an assistant administrator in the records department of East Kent Hospitals University NHS Foundation Trust (the “Trust”). Ms Levy had applied for a role in the radiology department.  On 9 June 2016, she was offered the role, subject to pre-engagement checks.

On 10 June 2016, Ms Levy provided her manager with a letter stating: “Please accept one month’s notice from the above date”. Her manager responded on the same day, accepting her resignation and wishing her success with her future employment.

On 16 June 2016, Ms Levy was informed that her offer of employment in the radiology department was being withdrawn due to her absence record. She then sought advice from human resources (“HR”) as to whether her resignation could be withdrawn, and HR advised that the withdrawal of resignations was within her manager’s discretion. Her manager then pursued HR to establish whether he was obliged to accept her retraction.  After taking advice, the Trust decided not to allow Ms Levy to retract her resignation.

Ms Levy was informed of this decision by a letter from the Trust dated 24 June 2016 and brought a claim for unfair dismissal.  Ms Levy asserted that she had been dismissed by the Trust and the Trust argued that she had resigned.

At first instance, the Tribunal found that Ms Levy had in fact been dismissed. It held that Ms Levy’s letter had failed to identify the subject to which it (and her notice) was referring –  it was unclear whether it was referring to her role in the records department alone or her employment with the Trust in general. The Tribunal, therefore, held that Ms Levy did not resign and instead found that she was dismissed by the Trust when it treated her letter of 10 June 2016 as a valid resignation.

The EAT upheld this decision.  The EAT found that, viewed objectively, the Trust would have reasonably understood Ms Levy’s letter on 10 June 2016 to be resignation from the records department alone and not resignation from the Trust’s employment.

Learning points

This case is an important reminder for employers to ensure that any notice of resignation received from an employee is valid – being objectively clear and unambiguous, with a clear intention to terminate all employment. If in doubt, employers can of course respond to the letter from the employee and ask them to clarify the point. 

 

This bulletin is for general guidance purposes only and should not be used for any other purpose. Brabners is a Limited Liability Partnership

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