Giving notice to your employer is a big step and one not to be taken lightly. Resigning from your job is not something that can usually be reversed – unless the employer agrees to this (they don’t have to). In a recent decision, the Employment Appeal Tribunal (EAT) considered a case where an employee had, apparently, given notice to leave her job, in anticipation of an internal transfer. When the offer of her new role was withdrawn, she sought to continue in her existing role but her employer held her to her notice and her employment terminated. She then claimed that this was an unfair dismissal.
In East Kent Hospitals University NHS Foundation Trust v Levy Mrs Levy had worked in the hospital’s records department for around 10 years. Following difficulties with another colleague she successfully applied for a new role in the radiology department. She submitted a letter to her manager which stated: “Please accept one month’s notice from the above date”. In response, her manager responded, “Thank you for your letter … in which you tendered your notice of resignation. It is with sincere regret and disappointment that I accept your notice of resignation. I can confirm that your last day of work within Health Records will be Friday 8 [July] 2016.”
On 16 June, the job offer in the radiology department was withdrawn. This was “unofficially” due to her sick leave record. Mrs Levy tried to retract her notice but, following advice from the HR department, her manager refused to accept that request and wrote to her again confirming the date of her last day of employment.
Mrs Levy brought a claim of unfair dismissal and an employment tribunal (ET) ruled in her favour.
The ET considered that the words used in Mrs Levy’s letter were not unambiguous and could have been either a notice of intended transfer or a notice of termination. The ET concluded that the letter would lead a reasonable observer to agree that the claimant was not terminating her employment but notifying her manager of her intention to accept the offer. It therefore upheld the claim that Mrs Levy had been unfairly dismissed when her employer insisted on the termination of her employment.
The employer appealed to the EAT. This was dismissed and the ET’s judgment that Mrs Levy had been unfairly dismissed was confirmed. The Judge considered that the employer had not merely confirmed the resignation but had actually dismissed the claimant and, the ET had been entitled to find that Mrs Levy’s letter was not unambiguous.
Although specific to its facts, this case serves to demonstrate that unless there is absolute clarity in an employee’s resignation, an employer risks a claim of unfair dismissal, especially where the employee subsequently seeks to withdraw their notice. An employer should understand why the employee is resigning, the notice they are giving (and whether this is subject to any conditions) and agree exactly when the employment will end.