Has your employee resigned? The problem of ambiguous notice

Usually it is clear when somebody intends to resign, but sometimes it can be uncertain...

In a warning for employers, the Employment Appeal Tribunal in East Kent Hospitals University NHS Foundation Trust v Levy has confirmed the importance of the surrounding circumstances when considering whether a resignation is unambiguous and effective. In this case, even though potentially clear words giving notice were used, it was held not to be a resignation because of the context.

The facts

Mrs Levy worked for the NHS Trust in their Records department.  She applied for an alternative role in the Trust’s Radiology department and it was offered to her. Following an incident (that morning) between Mrs Levy and another member of staff in the Records department, she sent a letter to her manager stating “please accept one month’s notice from the above date”.  Subsequently the offer of the alternative position in the Radiology department was withdrawn (due to her absence record). The Trust took the position that Mrs Levy’s notice had been resignation from her employment and refused to allow her to retract it and stay in employment. 

Mrs Levy brought a claim for unfair dismissal.  The first question the Tribunal needed to decide was had she resigned or was she dismissed?  The Tribunal found that the letter Mrs Levy had written was not an unambiguous resignation, in the context of her particular circumstances. It held it was unclear whether she was giving notice simply from her role in the Records department or from her entire employment. The Tribunal concluded that she had not resigned (which meant she had been dismissed by the Trust).  The Employment Appeal Tribunal has confirmed that this was a conclusion which the Tribunal was able to reach.

What does this mean for me?
On the face of it the words used by Mrs Levy look like a clear resignation, and it may well be that in many other cases a Tribunal would find the same words were effective to end employment.  However, what this decision emphasises is that it is not just the words used which is important, but also the context. Here the position was complicated because Mrs Levy was expecting to leave one job with the Trust and take up a new one.  In those circumstances the Tribunal concluded that the language used was not a clear and unambiguous resignation, and that it was the Trust which had ended the employment (and not Mrs Levy) based upon what an objective (but informed) observer would think about the letter she had written. 

In many circumstances you will be able to assume that a resignation letter is clear and unambiguous.  If that is correct, you are not obliged to allow an employee to withdraw their resignation if they want to do so.  However if there is any uncertainty at all, you do take a risk in asserting that the resignation cannot be withdrawn. If you get it wrong the upshot could be that you end up having to defend an unfair dismissal claim (which you may well struggle to do), as will be the case for the Trust in this case.

Comment

There is also a further note of caution in a further part of this decision.  Occasionally there are special circumstances which mean that an employer cannot take a resignation at face value, even where the resignation is clear. These cases are usually where purported notice is given orally in the heat of the moment, by words that may quickly be regretted. In this case, this Tribunal appeared to also extend this category of special circumstances to this written resignation. The Employment Appeal Tribunal does refer to this and does not say that the Tribunal was wrong to do so, although as it was not a central part of the EAT decision this remains uncertain. You do however need to be cautious if you are too hasty in accepting a resignation and this case suggests that may apply to written resignations which may be in the heat of the moment (as well as verbal ones). 

It is an important decision whether to allow an employee to retract a resignation after it has been given.  This Judgment is a warning of the risks in refusing to do so.  If you are in doubt about an employee’s resignation (or have any questions about this case) please take advice from your usual contact in the Weightmans Employment Pensions and Immigration Team (or speak to Phil Allen, Partner, phil.allen@weightmans.com).

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