Does giving an ambiguous notice amount to an act of resignation?

Summary

The Employment Appeal Tribunal [EAT] has decided an ambiguous notice did not amount to an act of resignation, agreeing with the Employment Tribunal [ET] Judge and dismissing the Respondent’s appeal of the ET decision, holding that ‘the ET was entitled to find that the reference to giving notice was related to the Claimant’s particular position in the Records Department and not a resignation from the Respondent’s employment..’  East Kent Hospitals University NHS Foundation Trust v Levy UKEAT/0232/17/LA

Facts

The Employee worked in the records department at the Hospital and received an offer to take up a position in the radiology department, subject to checks prior to her appointment. The Employee handed a letter to her manager, giving one month’s notice. Her ‘notice of resignation’ was accepted and her final working day in the department was confirmed. However, the manager did not take any further action in relation to the usual housekeeping matters arising on termination, such as completing a staff termination form or dealing with any outstanding annual leave. The offer of a new position was subsequently withdrawn as a result of the Employee’s sickness absence records. She then sought to retract her notice, but the Employer refused her request and proceeded with arrangements for the termination of the employee’s employment. The employee issued a claim for unfair dismissal in the Employment Tribunal.

Outcome

The Employee’s claim for unfair dismissal was upheld by the ET, who found that she had been unfairly dismissed by the Respondent . The Employee’s ‘notice’ was considered to be ambiguous but the ET concluded that objectively, the letter was only informing her employer of her intention to accept an offer of a new role within the organisation. The Respondent appealed to the EAT who dismissed the Respondent’s appeal. The EAT agreed with the ET that the wording of the Claimant’s letter was ambiguous and that the ‘notice’ could relate to either leaving the department or leaving the Employer’s employment. The letter had to be read in the context of the Employee’s conditional offer of a new role. Additionally, the manager’s response to the letter indicated that he understood it to be a notification of the Employee’s intention to move departments rather than to resign.

Implications for Employers

As an Employer it is best practice to have a clear policy on the arrangements that are applicable for internal transfers, to avoid any such misunderstandings as happened in this case. Of course,  each case is fact specific and in this case it was clear the Employer took advantage of an ambiguous situation to try and secure the employee’s departure  with whom some issues had previously arisen. However, it was clear from the manager’s actions in response to the Employee’s notice that he understood she was only intending to move to a new department, and had not intended to resign her employment.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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