Employment Matters October 2018
DAC Beachcroft's Employment Matters October 2018 focuses on some of the most interesting cases and events occurring within the Employment Law sector.
Published 12 October 2018
Mrs Levy was employed by East Kent Hospitals University NHS Foundation Trust (“the Trust”) as an assistant administrator in its records department. She experienced various difficulties at work, including a difficult relationship with a colleague, and she had been spoken to by the hospital’s Operational Manger, Mr Gorton-Davey, about her absence record. She applied for a position in the radiology department of the Trust and her application was successful: she received an offer from the department, subject to pre-engagement checks. After an incident with another member of staff in the records department, Mrs Levy handed Mr Gorton-Davey a letter on 10 June 2016, stating simply: “Please accept one Month’s Notice from the above date”.
Mr Gorton-Davey replied by letter that day, writing:
“Thank you for your letter dated 10 June 2016, in which you tendered your notice of resignation.
It is with sincere regret and disappointment that I accept your notice of resignation. I can confirm that your last day of work within Health Records will be Friday 8 [July] 2016.
I would like to [take] this opportunity in thanking you for your hard work, dedication and contributions to a highly successful team over the years and I wish you every future success in your employment.”
Mr Gorton-Davey did not complete a staff termination form, made no reference to Mrs Levy leaving her employment and did not address any other issues, such as outstanding annual leave.
However, a few days later, Mrs Levy heard that the offer of the alternative position in the radiology department was to be withdrawn because of her absence record. On receiving the news, she immediately called HR, as she wanted to withdraw her notice. She was told that this was at the discretion of the manager. She raised the issue with Mr Gorton-Davey, who also spoke to HR, and subsequently refused to allow her to retract her notice. He then wrote to Mrs Levy to confirm the date of termination of employment, addressing the question of outstanding annual leave, and went on to complete the staff termination form.
Mrs Levy claimed that she had been unfairly dismissed. The employment tribunal had to decide whether she had resigned, or whether she had been dismissed.
The employment tribunal said that the real issue was to determine “who really ended the contract of employment?” The Trust argued that the words Mrs Levy had used in her letter of 10 June had been clear and unambiguous. However, the tribunal rejected this argument, saying that the notice given in the letter might refer to her role in the records department - i.e. that she was giving notice of an intended transfer of department – or she could be giving notice of termination of her employment relationship. The tribunal said that, in the alternative, even if the words used had been clear and unambiguous, the context in which they had been used gave rise to “special circumstances”, and the words should be construed in that context. The tribunal considered that the context was provided by the fact that Mrs Levy was not happy in the records department, she had applied for and received a conditional offer for a new role, which she intended to take up, she did not know that her sickness absence record might adversely affect the conditional offer, and she needed to work. The Trust knew most of this context and (the tribunal concluded) an objective consideration of the letter would lead a reasonable person to conclude that Mrs Levy had been doing no more than informing Mr Gorton-Davey of her intentionto accept a conditional offer of a new role. She had not been terminating her employment.
The tribunal considered that this view was reinforced by the fact that Mr Gorton-Davey had not treated the letter as a letter of resignation: his letter in response had specifically referred to the end of her work with the records department, and it did not deal with the matters which would normally be dealt with in connection with termination of employment. In contrast, when she had asked for the notice to be retracted, he had written back specifically referring to the termination of her employment, giving the date, and dealing with holiday pay, and had not until that time completed the staff termination form.
The Trust appealed.
The EAT dismissed the appeal. It rejected the Trust’s argument that the tribunal erred in finding that the letter was ambiguous. While Mrs Levy had referred to “notice”, and in the context of an employment relationship this phrase might in many circumstances only be capable of meaning termination of employment, this situation was complicated by the fact that Mrs Levy was expecting to leave one job with the Trust to take up another position with the Trust. The EAT considered that the tribunal’s conclusion that the letter was ambiguous was permissible. It was also permissible for the tribunal to find that there were special circumstances in this case such that it would be wrong to simply take the reference to “giving notice” at face value.
Given that the letter was ambiguous, the EAT considered that the tribunal had adopted the correct test in deciding whether the letter should be construed as a letter of resignation from Mrs Levy’s employment: the test was "how would the letter of 10 June be construed by the reasonable recipient?" This should be determined by the particular circumstances known to the recipient at the time. Mr Gorton-Davey’s actions in response to the letter giving notice also indicated that, at the time, he understood the letter as notifying an intention to leave the records department rather than a resignation.
This case does not mean that employers always have to probe whether a resignation really is a resignation. There is no general duty on an employer to ensure that an employee, apparently using unambiguous words of resignation, intends to resign. However, if there are special circumstances which might mean that the resignation is not what it seems to be, employers should consider clarifying whether the employee had in fact intended to resign.