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Can an employee be unfairly dismissed by handing in their notice?

Mrs Levy worked as an administrator in the health records department for East Kent Hospitals NHS Foundation Trust, and had done so since 2006. During her 10 years with them, the main blemish on her record was that she had a number of absences, for which she was spoken to by a manager. Nevertheless, she applied for a position in the Trust’s radiology department and was told that she was successful subject to pre-engagement checks, which included a reference. Mrs Levy subsequently handed in her one month’s notice of resignation in a letter. This was accepted on the same day by her manager.

A few days after the letter was handed in, the radiology department withdrew the offer of employment. This was ‘unofficially’ down to Mrs Levy’s absence record. Mrs Levy then attempted to retract her notice, but this was refused by her manager. The manager went on to confirm the final date of employment.

Mrs Levy filed a claim for unfair dismissal with the ET. At the ET, it was found that whilst her letter was clearly one of resignation, it was ambiguous in that it did not specify whether it was to leave just her department, or to leave the Trust as a whole. The ET decided that it was for the former and so was not intended to give notice of termination, but rather it was notice that she intended to accept the offer of employment and transfer to a different department. The ET also felt that the letter showed that the Claimant was unaware that her absence might affect the offer of employment.

The Trust appealed to the EAT who confirmed the ET’s findings. Given the context of the matter, it amounted to a dismissal and not an acceptance of a resignation. As such, Mrs Levy was allowed to keep the original award of £25,000 for her unfair dismissal.

This decision favours the employee, giving some security in cases of ambiguity. In cases in which an employee offers a resignation, give the resignation itself some scrutiny. Ask yourself whether the resignation can be construed in any other way?

If there is anything which does not clearly show an intention to leave the business as a whole, take steps to clarify the intention of the employee in order to protect the business. Understanding why an employee has given notice might also provide answers which need to be addressed. If the notice is merely accepted, the business is at risk of subjecting itself to an unfair dismissal claim, due to a possible misunderstanding.

The link to the case can be found HERE.


These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.

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