When does giving notice not amount to a resignation from employment?
With the end of the Coronavirus Job Retention Scheme looming employers are seeing more and more people who have taken up alternative employment during their furlough period giving notice to end their employment but, times being ladened with uncertainty, more and more often the wording is ambiguous. In many cases this is likely unintentional but in others it may be by design, for example where an employee is looking to hedge their bets or is pushing to be selected for redundancy. So, when does notice not amount to a resignation?
On first glance when an employer receives “notice” from an employee the immediate assumption is likely to be that the communication amounts to a resignation. It seems logical doesn’t it? It may however surprise a number of employers to learn that it is not always in fact the case as was explored in the case of East Kent Hospitals University NHS Foundation Trust v Levy (UKEAT/0232/17/LA).
In this case the Claimant was an Assistant Administrator in the Records department of a hospital in Margate, Kent. Having been somewhat unhappy in her role she had applied for a job in the Radiology department at the same hospital. Upon receipt of a conditional offer for the job she submitted a letter to her manager on 10th June 2016 which read “Please accept once months’ notice from the above date”. However, on 16th June 2016 the job offer in Radiology was withdrawn and she then sought to retract her notice. This was refused by the Respondent who wrote to the Claimant on 24th June confirming that her employment would end on 10th July. She subsequently claimed unfair dismissal.
In the circumstances the Tribunal concluded, and the EAT later upheld, that the wording of the Claimant’s notice was ambiguous. In particular the wording could have referred to her giving notice of her departure from her position in the Records Department with a view to her taking up a new role in Radiology, or it could have referred to notice of resignation of her employment. The question then became, how would a reasonable listener have interpreted the wording taking into account what was known about the circumstances? In this case the Respondent’s initial reply to her resignation had referenced her last day of work within the Records department (note the specific reference to the department) which supported the finding that the wording itself had been ambiguous. The Tribunal had held that the Manager had considered that she had given notice of leaving or resigning from the Records department specifically and the EAT held that such was a permissible conclusion when considering the evidence of the response.
From this, the question that follows for any Tribunal will then be who ended the employment contract. In this case it was concluded that the Respondent’s correspondence dated 24th June 2018 constituted a dismissal and that the dismissal was unfair.
So, as employers, what should you take from this judgement? First and foremost, it is important to consider the specific circumstances when deciding whether or not to accept an employee’s resignation and/or whether a resignation can be withdrawn. Most employees giving notice will do so in unambiguous terms that make it clear they mean to leave their employment and in those circumstances the employer would be entitled to rely on it. The difficulty for employers comes where the resignation is delivered in the heat of the moment or the communication of “notice” is ambiguous as we have seen in this case. In such circumstances seek clarification as to the intent behind the communication before taking any action.