When is a resignation letter not a resignation?

31st October 2019

An employee who gave written notice to her employer had not resigned from her employment.  The notice was ambiguous and therefore had to be construed in context.

Facts

In East Kent Hospitals University NHS Foundation Trust v Levy, Ms Levy was employed as an administrator in the hospital’s records department. She applied for and was offered a role in the radiology department, subject to pre-engagement checks. The next day, following an incident with a colleague, she handed a letter to the operations manager, Mr Gorton-Davey, which stated “Please accept one month’s notice from the above date”.  Mr Gorton-Davey responded the same day with a letter headed “notice of resignation” accepting Ms Levy’s resignation and noting that her last day in the records department would be 8 July.

On 16 June Ms Levy was told that the job offer was being withdrawn due to her poor attendance  record.  She sought to withdraw her notice but Mr Gorton-Davey refused.  He wrote to her on 24 June advising her of the decision and confirming her last day of employment.  He informed her that the Trust would look to recover pay for holiday taken in excess of her accrued entitlement. He also completed a staff termination form.

Ms Levy claimed unfair dismissal but the Trust argued that it had not dismissed her. She had resigned.

The employment tribunal ruled that the Trust had dismissed Ms Levy.  Her letter of resignation was unclear and ambiguous as it did not identify what she was resigning from (her role in the records department or her employment with the Trust).  Given the ambiguity, her words had to be construed in context.  Against a background of her unhappiness in her role, a conditional job offer in another department, her being unaware that her employment history might affect her job offer and her need to support her family, a reasonable observer would conclude that she had informed Mr Gorton-Davey of her intention to accept a conditional offer of a new role.  It was not a notice of termination.

The tribunal also took into account that Mr Gorton-Davey had not treated Ms Levy’s letter as if it was a notice of resignation from the Trust: he referred to her last day in the department, he did not deal with outstanding holiday and he did not complete the staff termination from.  This was in contrast to what he did when the Trust decided that she should not be permitted to withdraw her resignation and her employment should cease. The tribunal therefore concluded that when Mr Gorton-Davey received Ms Levy’s written notice he did not understand her to be resigning from her employment with the Trust.

The tribunal therefore ruled that Ms Levy had been dismissed by the Trust’s letter of 24 June, when it treated her letter as a valid resignation.

The Trust appealed.

Decision

The Employment Appeal Tribunal dismissed the appeal.  It ruled that the employment tribunal had been entitled to conclude that the language used by Ms Levy was unclear and ambiguous and that a reasonable person construing the letter in the special circumstances that existed would not have considered it to be a resignation from employment.  The tribunal had also been entitled to conclude that Mr Gorton-Davey had construed the resignation letter as a resignation from the records department and not from employment.

Implications

If there is any ambiguity in an employee’s resignation letter an employer should seek to clarify with the employee exactly what they are intending. Case law already indicates that an employer should not take at face value a resignation given orally in the heat of the moment and should instead give the employee a reasonable opportunity to change their mind. The employment tribunal in this case suggested that employers may similarly need to exercise caution where notice is given hastily in writing.

If an employee asks to withdraw their resignation, the employer will first of all need to consider whether it is a valid resignation. If it is, then they are not obliged to agree to the withdrawal.  However, where no valid notice is given, there is in effect no notice to withdraw and so a refusal will mean that the employee has been dismissed and will be able to claim unfair dismissal.

For advice on individual resignations, please contact your Heads HR Consultant on 0161 850 4343.