A recent judgment in the case of East Kent Hospitals University NHS Foundation Trust v Levy has reminded us that employers should give careful consideration to all the circumstances when deciding whether to accept employee resignations and whether or not that resignation can be withdrawn. The full judgment can be read here.
In this case, the Employment Appeal Tribunal upheld the decision of the Employment Tribunal who found that the giving of ‘notice’ by the claimant did not amount to a resignation from employment in the particular context and circumstances.
Usually when an employee gives notice it will be a clear and unambiguous statement that they intend to end their employment, and the employer will be entitled to rely upon it.
However, if the words used are ambiguous or the resignation is delivered in the heat of the moment the position might not be as straight forward.
If there is some ambiguity in the words used or actions taken then the question should be asked how a reasonable person would interpret the events having knowledge of the full situation.
In the Levy case, the claimant worked in a hospital but was unhappy in her current role and consequently applied for a job in a different department within the same hospital. Upon receiving a conditional offer she gave her manager a letter asking to ‘please accept one month’s notice from the above date’. The job offer was subsequently withdrawn and then the hospital refused to allow the claimant’s request to retract her notice but instead wrote to her confirming her last day of employment.
It was held that the giving of notice was ambiguous as it could have referred to the claimant leaving one department before taking up a position with another department rather than leaving employment generally. Further, it was found that a reasonable observer would have reached the conclusion that the claimant’s intention was to provide notice that they were changing department and therefore the claimant was successful in her unfair dismissal claim.
It is worth remembering that resignations can be given and accepted verbally but as employer and employee must be absolutely clear that the employee genuinely wants to end their employment it is recommended that any resignation is confirmed in writing.
If the resignation is given after an argument, heated exchange or an employee walking out, an employer should wait a reasonable amount of time (often referred to as a cooling off period) before accepting the resignation. As little as one or two days might be reasonable as opposed to one or two weeks however this will be determined on a case by case basis.
If there is ambiguity in the words or actions taken to indicate a resignation, an employer may be under an additional obligation to seek to recover the situation and investigate the employee’s true intention, which could be done in writing or verbally. Holding a follow up discussion following a resignation is therefore advisable to confirm the notice period, the last day of employment or to attempt to resolve the issues which prompted the resignation.
The Levy case outlines the uncertainty which can surround a resignation and the importance of considering the employee’s intent bearing in mind the full context of the events. Should you need advice regarding resignations do not hesitate to contact a member of our Employment Team.
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