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What is a resignation?

The Employment Appeal Tribunal in the case of East Kent Hospital University NHS Foundation Trust v Levy has considered whether an employee gave notice of resignation or whether her employer had dismissed her.

Background

The Claimant was employed by East Kent Hospital University NHS Foundation Trust (“the Trust”) as an administrative assistant in the records department. She successfully applied for a role within the radiology department and was offered the role subject to checks.

The Claimant handed in a letter to the operational manager which stated: “Please accept one month’s notice from the above date”. The manager replied by letter headed “notice of resignation” noting her last day in the records department and wishing her luck for the future.

Before her notice period expired with the records department, the offer of employment with the radiology department was withdrawn due to the Claimant’s poor absence record. The Claimant sought to withdraw her notice from the records department but the manager refused to accept the retraction.

The Claimant brought a claim for unfair dismissal. The Trust argued that she had resigned.

The Law

There are no statutory rules about giving notice to terminate employment but a contract of employment may specify how notice should be given. At common law, notice must be clear and unambiguous.

Decision

The Tribunal held that the Claimant had been dismissed. It rejected the Trust’s argument that the Claimant’s letter had been sufficiently clear and unambiguous to amount to a resignation as it did not state if her intention was to transfer to another department or to terminate her employment with the Trust. The Tribunal went on to conclude that the Claimant had informed her manager of her intention to accept a conditional offer of a new role. She did not intend to terminate her employment with the Trust.

The Trust appealed.

The Employment Appeal Tribunal (“EAT”) dismissed the appeal. It held that the Tribunal was entitled to find that the Claimant had intended to give notice in relation to her role in the records department and not resign from the Trust.

Comment

It is only when a valid notice has been given that it cannot be withdrawn unilaterally. If the validity of a resignation comes into question, employers should take an objective approach i.e. how would the communication be construed by a reasonable recipient?

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