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Did giving notice amount to a resignation?

The Employment Appeal Tribunal looked at whether an employee who gave notice in order to start another job in a different department amounted to a resignation in East Kent Hospitals University NHS Foundation Trust v Levy.

The claimant was employed by East Kent Hospitals University NHS Foundation Trust (“the Trust”) and worked as an assistant administrator in the records department. She received an offer for a role in the radiology department, subject to pre-engagement checks. The Claimant then handed a letter to her manager which stated, “Please accept one month’s notice from the above date”.

The Claimant was subsequently told that the offer of the role in the radiology department was being withdrawn due to her absence record. The Claimant attempted to retract her resignation, however, her manager took the view that the Claimant’s absence record meant that she would not be offered a position with the Trust in any event.

As a result, the Claimant brought a claim for unfair dismissal in the Employment Tribunal and the decision was appealed by the Trust to the Employment Appeal Tribunal (EAT). Both the Employment Tribunal and EAT held that the Claimant had been unfairly dismissed.

The EAT found that the tribunal had reached a permissible conclusion that the language set out in the notice letter was not clear and unambiguous. Notice in this situation could either have meant leaving the department only or leaving the Trust’s employment altogether. In light of what the Claimant and the Trust were aware of at that time, the EAT formed the view that it would, in light of the background, be reasonable to understand the letter as notifying the Trust of the Claimant’s intention of moving to the radiology department rather than resigning.

The above case is unusual in that it related to an internal transfer resulting in the Trust being aware of this transfer thereby resulting in no termination of the Claimant’s employment. It would, however, be sensible for Employers to ensure that where any resignations are ambiguous they find out, for example, the reason for the employee’s resignation and the notice they will be giving. It would also be advisable for employers to have policies in place dealing with internal transfers.

About the Author

Rajveer Basra

Solicitor

Rajveer is a Solicitor who works in the Employment team.

She advises employers, senior executives,…

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