“I’m leaving! Well, sort of….”

The importance of using clear and unequivocal language in correspondence to terminate employment was the subject of examination in the recent Employment Appeal Tribunal (“EAT”) case of East Kent Hospitals University NHS Foundation Trust v Levy (UKEAT/0232/17).  The EAT upheld an employment tribunal’s decision that an employee's written notice related to an anticipated internal change of jobs and was not notice of resignation from employment. The words used in the notice had not been clear and unambiguous and, in any event, the context in which they had been used meant there were "special circumstances" which required them to be construed objectively. 

The employee concerned had been having some difficulties getting along with another member of her team.  She had also been spoken to by her manager regarding her level of absence.  She secured another role in a different department and handed in a letter to her manager stating "please accept one month's notice from the above date".  The employee intended that this was notice to move department and not to resign from her employment, although the letter did not state clearly what its subject was.  Her current manager sent a letter in response “accepting” her “resignation”. 

The offer of the new role was subsequently withdrawn due to the employee’s poor absence record and she sought to continue in her current role.  Her current manager took advice from HR and confirmed that he would not accept a retraction of her “resignation” and confirmed the termination of her employment.

The EAT found that the employment tribunal had correctly asked how the employee's notice would have been construed by a reasonable recipient in the light of the particular circumstances known to the recipient at the time the notice was received. The tribunal had been entitled to conclude that, on the facts, the employer had not understood the employee to be resigning from her employment.  When it subsequently treated her notice as a valid resignation, it effectively unfairly dismissed her. 

Employers should ensure that they carefully consider correspondence from employees in order to make sure that they do not misconstrue it to their detriment.  In the instant case the opportunity for the removal of a problematic employee without having to resort to dismissal proved too tempting for the employer, which was all too eager to accept the “resignation” ultimately leading to time-consuming and costly tribunal proceedings.

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