Update- Ambiguous notice does not constitute resignation

October 5, 2018, By

In the case of East Kent Hospitals University Foundation Trust v Levy, the Employment Appeal Tribunal (“EAT”) examined the Claimant, Ms Levy’s, correspondence in order to determine whether or not it constituted her resignation.

Ms Levy worked in the Respondent’s records department. She applied for an alternative position in the radiology department and she was offered this position subject to checks. Following her disagreement with a colleague in the records department, Ms Levy sent a message to her manager stating “Please accept one month’s notice from the above date”.

Her manager replied on the same date accepting the “notice of resignation” and referring to Ms Levy’s last working day within the records department but he didn’t make any of the usual formal arrangements for the end of her employment.

Ms Levy’s offer of a position in the radiology department was subsequently withdrawn. Ms Levy sought to retract her notice but her manager in the records department refused. The manager wrote to Ms Levy to confirm the date of termination of employment and to address the question about outstanding annual leave.

Ms Levy brought a claim for unfair dismissal and the initial question before the Employment Tribunal was whether Ms Levy had resigned or whether she was dismissed.

The Employment Tribunal found that Ms Levy had been dismissed. It examined the question of who really ended the contract of employment. The Tribunal found that Ms Levy’s words were ambiguous and had to be construed in context, which was that Ms Levy was unhappy in the records department and she had a conditional offer for a new job. The letter would lead a reasonable observer to conclude that Ms Levy was doing no more than informing her current manager of her intention to accept the new role.

The EAT agreed with the Employment Tribunal. It agreed that the words used by Ms Levy were ambiguous. It considered that Ms Levy’s use of the word “notice” could have been referring to either her leaving the records department or to her leaving the Respondent’s employment altogether. The EAT concluded that the Tribunal was entitled to take into account Ms Levy and her manager’s subjective views, particularly as there was no clear evidence of Ms Levy’s intention. Furthermore, her manager’s response to the letter, such as his failure to take the expected steps if he had really understood that she was leaving her employment, indicated that he understood that her letter was notifying of an intention to leave the records department, rather than a resignation.