In a recent employment tribunal case the question of whether an employee had resigned having written “please accept one month’s notice” was raised.
In Levy v East Kent Hospitals University NHS Foundation Trust, Levy had worked for the Trust for several years. However, she was unhappy in her role and applied for a job in another department at the hospital. She was told that she would be given the new job provided satisfactory pre-engagement checks were received.
In the meantime, she wrote to her existing manager simply stating, “please accept one month’s notice from the above date”. The manager told her he accepted the “resignation” and gave her the date of her last working day.
However, less than a week later her new job offer was withdrawn due to her poor sickness record. She called HR and asked to withdraw her notice. HR told her to talk to her manager, however, he refused to withdraw her notice because he would not offer Levy a job in open competition.
Levy argued that she had never intended to resign and claimed that she had been unfairly dismissed. Essentially, the Employment Appeal Tribunal (EAT) agreed. It found that Levy’s notice was ambiguous – it was not clear if she had given notice for her role in her department or her employment relationship with the hospital.
Writing for Lexology, Joanne Moseley, a senior associate solicitor at Irwin Mitchell, explained that the EAT had found that Levy was given notice, rather than resigning or terminating her contract.
“In the context of someone expecting to leave one job and take up a new position with the same employer, this language was sufficiently vague to make her intention unclear,” explained Moseley.
The EAT also investigated whether it was reasonable for the employer to interpret Levy’s words in the way that it had. It found that it was not reasonable and that she had not resigned. Instead “she was simply informing her manager that she was going to accept a conditional offer of a new job in a different department”.
Moseley said that, generally, employees cannot withdraw their notice of resignation – whether oral or written – unless the employer agrees.
“In most cases, you don’t have to worry if your employee says they are giving you notice, rather than resigning because their intention will be clear from the context,” said Moseley. “But, if you are uncertain, it is sensible to find out – not least because, if you are wrong, they will be treated as having been dismissed and may be able to claim unfair dismissal.”
She adds that it is particularly important to be cautious where an employee has resigned in the heat of the moment, in a temper, or under extreme pressure.
“Instead, you should allow a reasonable time to elapse (usually a day or two) to see if the employee actually intended to resign,” said Moseley. “Write to the employee and ask if they intended to resign and give them a limited deadline to respond.”
