The EAT has held that an employee had not resigned in circumstances where she had received a conditional offer for a different position with the same employer and had written to her line manager providing "one month's notice".  The EAT held that the Employment Tribunal had correctly applied an objective test when interpreting how the letter would have been construed by a reasonable recipient, in light of the particular circumstances known at the time (East Kent Hospitals University NHS Foundation v Levy).

Background law

Whilst a contract of employment may terminate in a number of ways, for an employee to succeed in an unfair dismissal claim he has to establish one of the following:

• the contract was terminated by the employer, whether with or without notice;
• the employer gave notice to terminate and, within the notice period, the employee gave counter-notice that expired before the end of the original notice period;
• the contract of employment was a limited-term contract and terminated on the happening of the limiting event without being renewed under the same contract; or
• the employee resigned, whether with or without notice, in circumstances where he was entitled to do so by reason of the employer's conduct.

In particular, the circumstances do not include termination by the employee's genuine voluntary resignation. The case law indicates that an employee who uses unambiguous words to terminate their contract of employment cannot normally argue that he did not intend to resign. Rather, the central question is how an informed reasonable listener or reader would understand the words. However, there may be special circumstances, commonly where resignations are made in the heat of the moment, where purported notice of resignation will have no effect.

Facts

The Claimant was an Assistant Administrator in the Records Department at East Kent Hospitals University NHS Foundation (EKH). The Claimant made an internal application to move to a different role in the Radiology Department.  

On 9 June 2016 the Claimant was offered the role, subject to pre-engagement checks.  On 10 June 2016 she handed in a letter to her line manager which stated: ''Please accept one month's notice from the above date".  Her line manager responded on the same day stating: ''It is with sincere regret and disappointment that I accept your notice of resignation". He did not complete the staff termination form, which was applicable to those who were leaving EKH's employment. There was no requirement to complete the form for internal transfers. 

On 16 June 2016 the offer of the alternative role in the Radiology Department which had been made to the Claimant was withdrawn due to her absence record.  The Claimant then contacted Human Resources to seek advice about retracting her notice of resignation from her original role. On 24 June 2016, EKH told the Claimant that it did not accept her request to withdraw her resignation, meaning that her employment would terminate at the end of the notice period. 

The Claimant brought a claim for constructive unfair dismissal in the Employment Tribunal and was subsequently permitted to amend the claim to assert she had been directly dismissed by EKH. 

Employment Tribunal decision

The Tribunal found that the central question in this case was: who really ended the contract of employment?  The Tribunal rejected EKH's argument that the words used in the letter of 10 June 2016 amounted to clear and unambiguous resignation. The Tribunal held that the letter could be construed to mean either that the Claimant wished to: 

• resign from her position within the Records Department only and remain employed by EKH in the new role; or 
• resign from her employment with EKH in its entirety. 

The Tribunal applied an objective test to the interpretation of the letter.  In doing so, it gave regard to the circumstances of the case, however, refrained from taking into account the subjective views of the Claimant and/or her line manager to whom the letter was given. The Tribunal found that it was reasonable to construe the letter as the Claimant giving notice of her departure from the Records Department and not resignation from employment as a whole.  That being the case, EKH's letter of 24 June 2016 amounted to a direct dismissal, which was also unfair.  EKH appealed the decision.

EAT decision

The EAT upheld the Tribunal's decision.  Given the special circumstances of the case (i.e. the fact that the Claimant was expecting to take up a new position in a different department) the Tribunal was entitled to find that the language of the letter of 10 June 2016 was ambiguous.

In its interpretation of the letter of 10 June 2016, the Tribunal did not err in declining to have regard to the subjective views of the Claimant or her line manager.  Nor did the Tribunal err in failing to take account of events after 10 June 2016.  In particular, the EAT rejected EKH's contention that the use of the word ''resignation'' by the Claimant when she sought to withdraw her notice was evidence of what she intended the letter to mean.   Accordingly, the Employment Tribunal was entitled to conclude that the Claimant's resignation was confined to her position in the Records Department. 

Comment

The decision reminds us that careful consideration of the circumstances in which an employee resigns is of utmost importance. It illustrates that disputes may arise in relation to ambiguous resignations, in order to avoid potential unfair dismissal claims. Employers should seek to establish the exact position and intentions of the employee prior to accepting an employee's resignation and/or making a decision on whether a resignation can or cannot be withdrawn. 

East Kent Hospitals University NHS Foundation v Levy

This article was drafted by Adela Motyckova, Trainee Solicitor