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Should I stay, or should I go now?

Resignation

When is a resignation not a resignation?

There can be few employers (or employees for that matter), who have not found themselves in a situation with a “problem” member of staff and breathed a relief when that person decided to move on either internally or externally.

However, when is a resignation not a resignation? One might think “Please accept one month's notice from the above date” would constitute an effective resignation. However, in the words of the song “It's always tease, tease, tease”, and the recent case of East Kent Hospitals University NHS Foundation Trust v Levy is a timely reminder the need to take account of the context of events when dealing with resignations in particular and employment law more generally.

Mrs Levy, worked in the records department, and had experienced some problems with other members of staff, and applied for a job in radiology, this application was successful subject to some pre-appointment checks.

Before the checks were complete, Mrs Levy had a row with another member of staff. As she had the offer, Mrs Levy handed in a letter to her manager stating, “please accept one month's notice from the above date”. Her manager replied the same day accepting the “notice of resignation”. The manager's letter confirmed Mrs Levy's last working day in the department but made no mention of her leaving her employment with the trust or any outstanding issues such as accrued holiday entitlement.

The offer from radiology was after that withdrawn because of Mrs Levy's poor sick leave record.  She then attempted to retract her notice of resignation. However, the Trust refused to agree to this confirming her employment would end at the end of her notice period. Mrs Levy brought a claim for both constructive dismissal and unfair dismissal. The Trust defended on the basis that she had resigned. The Employment Tribunal (ET) did not agree and found that the letter giving notice was not clear in its terms, as to whether she was giving the notice to leave the records department or her employment with the Trust. Critically, they found, given the terms of the acceptance, the Trust understood the notice to relate to the former only. The ET, therefore, upheld her unfair dismissal claim.

The Trust appealed the finding of dismissal.

The EAT agreed with the ET that the letter giving notice was ambiguous. They determined the ET was correct in their consideration of the Trust's immediate response the conclusion reached that the manager's letter related to Mrs Levy's departure from the records department only and not from her employment more generally.

The fact that the letter was ambiguous in its meaning allowed both the ET and the EAT to make a finding that it was not an effective resignation from employment.

This case is a timely reminder to both employers and employees that clear, unequivocal statements are best. It's dangerous to assume that a reader will interpret any ambiguity in the same way. For an employer in particular, if there is any doubt as to what an employee means in such a situation, they should seek to clarify before taking steps to terminate employment.

“If I go there will be trouble. And if I stay there will be double”.

Ending on a light-hearted note the Clashes lyrics serve as a reminder in such situations to ask the question.

Rhona joined BTO Solicitors as a Consultant in September 2016 in their Dispute Resolution team.

Her practice includes advising individuals and businesses across a broad range of sectors, including financial services, property, construction and retail, ranging from PLC'S to SME's and start-ups. She provides advice in relation to all aspects of their businesses involving commercial and contractual disputes. These include the full range of employment law issues, such as unfair dismissal, discrimination, TUPE, senior executive exits and redundancy. Rhona enjoys working closely with her clients on all facets of their business in relation to commercial matters and people management.

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