Does giving notice amount to an unambiguous act of resignation from employment?

Does giving notice amount to an unambiguous act of resignation from employment?
An employee giving notice does not necessarily amount to an unambiguous act of resignation from employment, the Employment Appeal Tribunal found in East Kent Hospitals University NHS Foundation Trust v Levy.
Background 
Mrs P Levy was employed by East Kent Hospitals University NHS Foundation Trust as an administrative assistant in their Records Department and had received a conditional offer for a position in the same NHS Trust’s Radiology Department, subject to reference checks. Accordingly, she sent a letter stating: “Please accept one Month’s Notice from the above date”. The manager, to whom the letter was addressed, accepted Mrs Levy’s “notice of resignation”. Subsequently, the conditional offer in the Radiology Department was withdrawn and Mrs Levy sought to retract her notice, to which the NHS Trust refused. Mrs Levy’s employment then ended at the end of her notice period and Mrs Levy brought an unfair dismissal claim. The ET found that Mrs Levy’s notice letter had been ambiguous as to whether she was giving notice to leave the Records Department or leave her employment at the NHS Trust. The ET applied an objective approach as to how the reasonable recipient would have understood the words in the letter and found that the NHS Trust understood that Mrs Levy was giving notice of her departure from the Records Department, and not notice of resignation from the NHS Trust. As a result, Mrs Levy succeeded in her unfair dismissal claim.
Decision 
The EAT agreed with the ET’s decision and dismissed the NHS Trust’s appeal. As a consequence of the ambiguity arising from Mrs Levy’s letter giving notice, the ET accurately applied the objective test when determining how the words used would have been understood by the reasonable recipient of the letter giving notice. The ET was correct to conclude that the NHS Trust understood the words of the letter to indicate Mrs Levy’s move from the Records Department to the Radiology Department and not resignation from her employment. The NHS Trust’s immediate response which specifically spoke in terms of her last day of work within the Records Department and the NHS Trust’s managers failure to the take the usual steps regarding resignations from employment pointed to the notice not being from her employment but rather from her position.
Conclusion 
The decision highlights that employers should carefully scrutinise ambiguous notices of resignations before accepting them as notices of resignation from employment.  In certain cases, consideration should be given to clarifying such notice with the employee and recording any confirmation in writing.

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Tom Fancett

About Tom Fancett

Tom has experience acting for both employers and employees, advising on the full spectrum of contentious and non-contentious matters. His experience includes advising on large commercial transactions, including redundancy and TUPE issues; undertaking buy side and sell side due diligence exercises into the employment aspects for multiple commercial transactions; coordinating multijurisdictional projects; defending Employment Tribunal claims in relation to unfair dismissal, disability and sex discrimination and whistleblowing; advising on day-to-day HR and disciplinary issues; drafting and negotiating settlement and service agreements; and reviewing company handbooks and template employment contracts.

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