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When is giving notice not a resignation?

21 September 2018
DWF | Join Us
That is the question the Tribunal and, more recently, the EAT had to decide in East Kent Hospitals University NHS Foundation Trust –v- Levy.  It is a timely reminder of the need for notice to be clear and unambiguous.

Background

Mrs Levy worked as an admin assistant in the Trust's Records department for 10 years.  She had a difficult relationship with one of her colleagues and since 2014, when her mother fell seriously ill and she began caring for her father, she had a poor absence record.  She applied for an internal transfer to the Radiology department and received a conditional offer.  Following an incident with another colleague, she wrote to her line manager on 10 June saying, "Please accept one Month's Notice from the above date".  Her line manager acknowledged her notice, confirmed her last day in the Records department but did not complete a leaver's form (which did not apply to internal transfers) or explain any of the arrangements about the end of her employment with the Trust.  Six days later, the Claimant's offer from Radiology was withdrawn.  Mrs Levy immediately contacted HR and her line manager about withdrawing her notice, which the Trust took some time to consider but ultimately refused to accept.  It therefore wrote to her one week later on 24 June confirming its decision and setting out the arrangements for the end of her employment including the repayment of excess holiday.  Her line manager completed the leaver's form straight after sending this letter.

The claim

Mrs Levy brought a claim of unfair dismissal. The key question in her claim was "who really ended the contract of employment?" Was it Mrs Levy in her one line letter on 10 June? Or was it the Trust when it wrote to her on 24 June treating her 10 June letter as a formal resignation?

Both the Tribunal and the EAT found that Mrs Levy had not clearly and unambiguously intended to resign from her employment on 10 June.   That letter was not valid notice of termination. It was simply notice of her wish to end her role in the records department. The Trust's response to that letter simply reinforced that view – at that stage it did not take any of the steps you would expect in relation to the end of employment.  It only did that on 24 June and so the Trust had dismissed her on that date.

Comment

The facts of this case are somewhat unusual and notice given in this way would normally be sufficient to indicate the wish to end the employment relationship.  However, it is a good reminder that if there is any ambiguity about whether an employee has genuinely given notice, you should ensure that is what they truly intend.  Going one step further, even when notice is unambiguous, if there are "special circumstances" – often, but not always resignations made in the heat of the moment – then you should also make sure of the employee's true intentions.

Finally, there is often confusion about whether resignations must be accepted by the employer.   In fact, either party can end the employment relationship unilaterally by giving valid notice clearly and unambiguously. However, once valid notice has been given it can only be reversed if both parties agree. 

Further Reading

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