Employee's notice of resignation anticipated internal transfer and was not a notice of termination of employment

East Kent Hospitals University NHS Foundation Trust v Levy UKEAT/0232/17

Why care

The issue for the Employment Appeal Tribunal (EAT) to decide was whether the employee had resigned or been dismissed.

The case

Ms Levy had worked in the Records Department at one of the Trust's hospitals. She had experienced various issues at work, and had a difficult relationship with one of her colleagues. Separately, she had been spoken to about her poor absence record by the hospital's Operational Manager.

Unhappy in her role in Records, Ms Levy successfully applied, subject to pre-engagement checks, for a position in the Trust's Radiology Department. The day after Ms Levy received news about this alternative role, an incident occurred between Ms Levy and another member of staff in the Records Department, Mr Gorton-Davey. This led her to hand in a letter to him stating simply: "Please accept one Month's Notice from the above date."

Mr Gorton-Davey responded by letter on the same day headed "notice of resignation" in which he accepted Ms Levy's resignation and noted that her last day in the Records Department would be a month later. He thanked her for her contribution and wished her success with her future employment.

About a week later Ms Levy was told that the offer of the role in the Radiology Department was being withdrawn due to her absence record. She contacted HR about withdrawing her notice and was told that this was at her manager's discretion. She raised the matter with Mr Gorton-Davey, who asked HR whether he had to accept a retraction of resignation.

The Trust took legal advice and Mr Gorton-Davey was advised by HR that there was no obligation to accept a retraction of a resignation; it was a matter for an employer whether it wished to do so or not. Discussing the matter with his line manager, they took the view that Ms Levy's absence record meant that she would not be offered a position with the Trust in open competition and therefore she should not be permitted to retract her resignation. Mr Gorton-Davey wrote to Ms Levy advising her of the decision and confirmed her last day of employment.

Ms Levy brought a claim for unfair dismissal but the Trust argued that she had not been dismissed but had resigned. The employment tribunal had to ask itself "Who really ended the contract of employment?"

The tribunal held that Ms Levy had been dismissed. It rejected the Trust's contention that the words used in Ms Levy's letter of 10 June 2016 were clear and unambiguous. The letter did not explain whether Ms Levy was giving notice of an intended transfer of department, or notice of termination of her employment.

Alternatively, the tribunal held that even if the words used were clear and unambiguous, the context in which they had been used gave rise to 'special circumstances' so that her words had to be construed objectively, having regard to all the circumstances of the case. This included Ms Levy being unhappy in the Records Department, she had received a conditional offer to move to a new role at the Trust, she was unaware that her employment history might affect the offer and she needed to work to support herself and her family and to assist in caring for her father. The Trust was also aware of these factors.

The tribunal concluded, on a balance of probabilities, that Ms Levy had established that she did not resign from her employment with the Trust but was dismissed by Mr Gorton-Davey as a consequence of the Trust's decision to treat her letter as a valid resignation.

The Employment Appeal Tribunal (EAT) dismissed the Trust's appeal and held that the letter giving notice was not clear and unambiguous.

Although giving notice in an employment relationship usually means terminating it, because Ms Levy was expecting to leave her role in the Records Department for a role in the Radiology Department, the language used had to be seen in the special circumstances that existed at the relevant time.

This meant that the tribunal was entitled to find that the reference to giving notice was related to her changing position, and not resigning. This was reasonably understood to be the case by the Trust when the letter was read on the same day it was received. When the Radiology offer was later withdrawn, the Trust decided that Ms Levy's employment had to come to an end and the EAT agreed with the tribunal that that amounted to a dismissal.

What to take away

Employers should take care to consider the circumstances in which a notice of resignation is made by an employee. In doing so in this case, the courts accepted that the employee was not resigning from her employment, just from her role where she worked.