Where there is doubt about a worker’s intentions, an employer should attempt, within a reasonable timeframe, to clarify the situation with the worker so that there is no misunderstanding that may give rise to a claim, particularly if the worker is also an employee. It is also good practice to confirm the outcome of any discussions in writing to the worker.
Should the issue proceed to the Employment Tribunal, the recent decision of the Employment Appeal Tribunal in East Kent Hospitals University NHS Foundation Trust v Levy has made it clear that the Tribunal will ask itself the key practical question of who really brought the working relationship to an end.
The worker in this case was an employee in the employer’s Records Department. She found it difficult to work alongside one particular colleague and had also received a warning about her sickness absence record. She applied to transfer her employment to the employer’s Radiology Department. She received a conditional offer of a job in the Radiology Department, subject to satisfactory references being received. However, the reference provided by her manager in the Records Department included details of her sickness absence record.
Following a further altercation between the employee and her colleague in the Records Department, she provided her manager with a letter, part of which read “Please accept one Month’s Notice from the above date”. She did not mention that it was her intention to leave her employment entirely and her conditional offer to transfer her employment to the Radiology Department was still live.
The manager accepted her letter giving notice and the employee planned to have a brief break before her employment transferred to the Radiology Department. However, less than a week later, the employee was notified that, based on the information contained in her manager’s reference relating to her sickness absence record, the conditional offer to transfer her employment to the Radiology Department was withdrawn.
She attempted to withdraw her letter giving notice, but this was declined by her manager.
The employee initially claimed constructive unfair dismissal, but subsequently changed this to a claim of straightforward unfair dismissal (claims that apply to employees with 2 years’ continuous unbroken employment with their employer, but not to workers). On the facts, both the Employment Tribunal and the Employment Appeal Tribunal held that the employee had been unfairly dismissed.
The reason behind this decision was that the tribunals had to consider what a person with knowledge of all the facts but a lack of personal interest in the matter would have made of the wording in the employee’s letter giving notice.
The tribunals held that the employee had not resigned from her employment altogether as the employer had known that she had applied to transfer her employment from one department to another and had had no reason to specifically believe when she submitted her letter giving notice that she would not get that transfer. In support of this decision, the tribunals highlighted the actions of the employee’s manager:-
- He had acknowledged her letter giving notice and had responded that her employment in the Records Department was ending. This did not necessarily mean that her ongoing employment with the employer was ending;
- He had not addressed usual points that would arise if the employment with the employer was ending, such as making a payment to the employee in lieu of her accrued but untaken holiday entitlement. He only notified the employee that such a payment would be made once the conditional offer from the Radiology Department had been withdrawn, and
- He had not completed a staff termination form after receiving her letter giving notice. This form was only to be used for those leaving the employer’s employment and not for those who were simply transferring between departments. Again, after the conditional offer to transfer to the Radiology Department had been withdrawn, the manager then completed a staff termination form for the employee.
The employer attempted to argue that the employee had referred to her letter giving notice as her “resignation”. However, the tribunals noted that the employee only began referring to her letter giving notice as a “resignation” after the employer had started to do so.
The tribunals held that the employee’s notice was unclear on whether she was actually resigning from her employment with the employer or not. Therefore, the employer was not entitled to assume that she had resigned from her job as a whole and had unfairly dismissed her.
Levy relies heavily on its facts and is not a typical example of a dismissal where there is doubt about whether the employee has resigned or not. This is largely due to the employer’s own internal procedures concerning employees transferring their employment from one department to another.
The case is a reminder to employers that they must follow proper procedures and treat all workers fairly. In this case, the employer was clearly concerned about the employee’s existing sickness absence record, which may have influenced its decision to treat her letter giving notice of her intention to leave the Records Department as a letter of resignation instead.
This decision may be troubling to employers. As explained above, employers should do everything possible to clarify the situation where there is any doubt about what has happened, both for their own protection and to maintain a good onward working relationship if a worker has not actually tendered his or her resignation.
This article is not a substitute for legal advice on specific facts and circumstances. It is designed as a free update on the law at the time of publishing. Knight Polson Limited trading as QualitySolicitors Knight Polson accepts no responsibility for reliance on this article and recommends that you seek independent legal advice on your specific circumstances prior to taking any steps.
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