Employee who wrote “Please accept one month’s notice” did not resign

If you received a letter from an employee written in this way - would you think they had resigned? The employer did in Levy v East Kent Hospitals University NHS Foundation Trust and it refused to allow the employee to retract it. But, the Tribunal decided that the employer had really ended the relationship and found that the employee had been unfairly dismissed.

Facts 

The facts are slightly unusual. Ms Levy had worked at the hospital for a number of years, most recently in its records department. She was unhappy there and applied for a position in the hospital’s radiology unit. On 9 June, she was told she would be given the job, provided the hospital received satisfactory pre-engagement checks about her. The following day, Ms Levy wrote a letter to her existing manager, stating simply “Please accept one month’s notice from the above date.” Her manager told her he accepted her “resignation” and gave her the date of her last working day in the records department.

So, far so good. However less than a week later, Ms Levy was told that the offer of alternative employment had been withdrawn because of her poor sickness record. She immediately telephoned HR and asked if she could withdraw her notice. HR told her to talk to her manager which she did. However, he refused because, he said, he would not offer Ms Levy a job in open competition.

Ms Levy said that she had never intended to resign and claimed that she had been unfairly dismissed.

Tribunal decision

The Tribunal said that Ms Levy’s notice was ambiguous - it was not clear if she had given notice to terminate her role in the records department or her employment relationship with the hospital. The Employment Appeal Tribunal agreed. Ms Levy had said she was “giving notice” rather than “resigning” or “terminating” her contract and, in the context of someone expecting to leave one job and take up a new position with the same employer, this language was sufficiently vague to make her intention unclear.

The next question to be answered was how would a reasonable employer have interpreted her words? Not in the way in which this NHS did, according to the Tribunal. It said that Ms Levy had not resigned; she was simply informing her manager that she was going to accept the conditional offer of a new job in a different department.

What lessons can employers learn from this?

The general “rule” is that an employee cannot withdraw their notice of resignation (whether given orally or in writing) unless you agree.

In most cases you don’t have to worry if your employee says they are giving you notice, rather than resigning because their intention will be clear from the context. But, if you are uncertain, it is sensible to find out – not least because, if you are wrong, they will be treated as having been dismissed and may be able to claim unfair dismissal.

It is particularly important to not act too hastily if an employee resigns in the heat of the moment, in temper, or under extreme pressure. Instead, you should allow a reasonable time to elapse (usually a day or two) to see if the employee actually intended to resign. Write to the employee and ask if they intended to resign and give them a limited deadline to respond.

We can help

We can help you to draft an appropriate response to an employee who has resigned in the heat of the moment or where their letter is unclear.

Please contact our expert, Alan Lewis by email: alan.lewis@irwinmitchell.com or by phone: +44 (0)161 259 1548