Employers managing difficult staff tend to welcome voluntary resignations rather than having to confront whether there are sufficient grounds to dismiss. However a recent case highlights that care needs to be taken to ensure that what appears to be a resignation of employment is precisely what it seems.

In East Kent Hospitals University NHS Foundation Trust v Levy, Ms Levy worked in the Records Department of the hospital. Due to difficulties within the department she had applied for an alternative position in the Radiology Department of the same hospital and had been offered a post subject to pre-employment checks. However Ms Levy had an altercation with a colleague in the Records Department before she had received confirmation of her employment and handed a letter to her manager which appeared to give notice that she was terminating her contract. The letter stated “please accept one month’s notice from the above date”. Her manager replied on the same day, accepting Ms Levy’s “notice of resignation” and referring to her last working day within the department. However following the acceptance, he did not take the usual steps including completing a staff termination form.

Following the notice and acceptance of notice, the Radiology Department withdrew the offer of a post due to Ms Levy’s sickness absence record and she sought to withdraw her notice. Her manager , having taken HR advice, refused and wrote to Ms Levy to confirm the date of termination of her employment and to address the question of outstanding leave. He then completed the staff termination form. Ms Levy brought a claim of unfair dismissal and the Employment Tribunal had to decide whether she had resigned or had been dismissed by the Hospital.

The Employment Tribunal did not accept that Ms Levy’s resignation letter had been clear and unambiguous and concluded that it could have been either a notice of her anticipated transfer to the Radiology Department or notice of termination of her employment. The letter should have been construed in context, including that she was unhappy in the Records Department and had a conditional offer in the Radiology Department.

The Trust appealed arguing that it was wrong to find that the wording of the resignation letter had been ambiguous and that the Tribunal should have taken into account the fact that her manager understood that she was giving notice to terminate her employment.

The Employment Appeal Tribunal dismissed the Trust’s argument and upheld the decision of the Employment Tribunal. The EAT stated that even if there was no ambiguity in the words Ms Levy had used, it was entitled to take into account the special circumstances of the case namely that she was expecting to leave one role within the Trust and take up another and that the letter should have been read in that context. The EAT doubted that the Trust were correct to argue that the phrase “giving notice” can only ever refer to the termination of employment. It further held that the Tribunal had been entitled to adopt an objective approach in interpreting the resignation letter rather than taking into account the subjective views of the parties. Lastly the manager’s failures to take the expected follow up action in response to receipt of a resignation indicated that he had understood the letter as notifying an intention to leave the Records Department rather than a resignation of employment.

East Kent Hospitals University NHS Foundation Trust v Levy UKEAT/2018/232