Avoiding ambiguity around resignations

Rebecca Berry reports on a recent EAT judgment, which provides a warning to employers about the potential pitfalls of unclear communications from employees

East Kent Hospitals University NHS Foundation Trust v Levy involved an employee within the employer’s medical records department. Ms Levy received a conditional offer to move internally to the employer’s radiology department. Ms Levy wrote to her manager in the medical records department stating ‘please accept one month’s notice’. Her manager responded by accepting what he called her ‘notice of resignation’.

Unfortunately for Ms Levy, the offer to move to the radiology department was withdrawn. As a result, she tried to retract her ‘notice’, which she referred to at that point as her ‘notice of resignation’. Her manager refused, and it was only then that he proceeded to complete the employer’s termination paperwork and calculate her accrued but untaken holiday.

Ms Levy’s employment came to an end, and she brought a claim for unfair dismissal on the basis that her notice was not to terminate her employment with the employer, but rather to provide notice of an internal transfer.

At the original hearing, the employment tribunal found that the employer had dismissed her. The employer appealed, but the Employment Appeal Tribunal (EAT) agreed with the first tribunal for the following reasons:

  • Ms Levy’s original letter giving notice was ambiguous – it could have referred to her intention to move to the radiology department, or it could have referred to an intention to terminate her employment. The EAT considered the 2012 Court of Appeal case of Willoughby v CF Capital plc, which provides that a notice of resignation or dismissal cannot be withdrawn without the consent of the other party. However, Willoughby also states that in ‘special circumstances’ it might be unreasonable for the words of that resignation to be construed at face value. 

  • As the notice was ambiguous, the tribunal was right to apply an objective test to consider how it could have been understood by a reasonable recipient. In particular, the EAT noted that the manager had not taken any steps upon receiving Ms Levy’s notice to complete the termination paperwork or calculate her accrued annual leave – that only happened once the offer of a role in the radiology department had been withdrawn. The EAT held that when the manager initially received the notice, he had reasonably concluded that Ms Levy had intended to leave the records department, rather than the employer as a whole.

  • The EAT held that Ms Levy’s subsequent reference to her ‘notice of resignation’ did not conclude that she actually intended to terminate her employment. The EAT put further weight on the fact that the employer had taken no action to conclude Ms Levy’s employment until the offer of a new role in the radiology department was withdrawn.

What lessons can be learned from this case?

There are no legal requirements setting out what must be contained in a resignation to make it valid – but there is the principle that notices must be clear and unambiguous. Communications from employees can sometimes be notoriously vague. However, using the EAT’s words, this is a ‘cautionary reminder’ to employers as recipients of resignations. If an ambiguous ‘notice’ is received, it is key to consider the circumstances in which it is given. Could the words used be interpreted in a different way? Was it a knee-jerk reaction? 

While it may be tempting for an employer to quickly accept the ‘resignation’ of a problem employee, if there is any doubt it is wise to ask the individual to clarify their intentions when the dust has settled if notice was provided in an emotional way. The ideal situation would be to receive a clear written indication that leaves the reader in no doubt that it is the employee’s intention to leave the employer. 

Rebecca Berry is an associate in the employment team at Barlow Robbins