When is a resignation not a resignation?
In the case of East Kent Hospitals University NHS Foundation Trust v Levy, the Employment Appeal Tribunal (EAT) confirmed the importance of the surrounding circumstances when considering whether a resignation is unambiguous and effective.
Facts of the case
Ms L worked in the Trust’s records department. She applied for an alternative role in another department (Radiology) and was successful in obtaining an offer.
Following an incident with a colleague, Ms L handed a letter to her manager dated 10 June 2016 that stated: ‘Please accept one month’s notice from the above date’. Ms L’s manager responded by letter on the same day headed ‘notice of resignation’ in which he accepted Ms L’s resignation and noted that her last day of employment would be 8 July 2016. The offer of the alternative position in Radiology was withdrawn.
Ms L requested a retraction of her resignation but this was not accepted. Ms L brought a claim for unfair dismissal. The Trust argued that she had not been dismissed but had resigned.
The Employment Tribunal
The Employment Tribunal held that Ms L had been dismissed.
It rejected the Trust’s argument that the words used in Ms L’s letter of 10 June 2016 were clear and unambiguous.
In addition, the Employment Tribunal held that even if the words used had been clear and unambiguous, the context in which they had been used meant there were ‘special circumstances’ which required Ms L’s words to be construed objectively, having regard to all the circumstances of the case.
The Trust appealed.
The Employment Appeal Tribunal
The EAT dismissed the appeal. It held that the Employment Tribunal had reached the correct conclusion that the language was not clear and unambiguous or, in the alternative, that it had to be read in the light of the special circumstances that existed.
A key message from this case is that is not only the words that are used that are important but also the context.
Further, one of the issues in this case was the advice that the employer was not obliged to accept a retraction of a resignation. It is important to note that it is a valid notice that cannot be withdrawn unilaterally, whether by the employer or the employee. In this case there was not a valid notice. If there is uncertainty in the notice, then there is a risk on the employer by not retracting the resignation.
Often the resignation of a problem employee is a welcome relief. However, this decision is a warning of the risks in refusing the employee to withdraw their resignation.
If you have any questions please contact:
Partner and Head of Employment
T. 020 7227 7410
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.