It is well understood that once valid notification of termination of employment has been given, it cannot be unilaterally withdrawn. However, in some circumstances it will not be clear whether or not valid notice has in fact been given. This was the issue considered by the Employment Appeal Tribunal in East Kent Hospitals University NHS Foundation Trust v Levy.

What happened in the case?

The claimant was working in the records department of a hospital when she received an offer for a role in the radiology department, subject to pre-engagement checks. She sent a letter to her manager stating 'Please accept one month's notice from the above date'.

The conditional offer from radiology was then withdrawn, unofficially because of the claimant's absence record. As a result, she tried to retract her letter of resignation but her manager refused and her employment ended.

The claimant raised a claim for unfair dismissal in the Employment Tribunal and the case was later appealed to the Employment Appeal Tribunal. Both the ET and the EAT found that the claimant had been unfairly dismissed - it was not a case of an employer simply accepting a resignation.

The EAT found that the letter of resignation was ambiguous. Although it referred to 'giving notice' it was not clear whether this meant notice of termination of employment or notice of transfer to another department. In the context of an internal transfer and in light of the knowledge the individual parties had at the relevant time, the EAT decided that it would be reasonable to understand the letter as signifying a move from the records department to radiology, rather than a resignation from employment.

Lessons to be learned

The facts of this case may be fairly unique as the employee was merely moving departments rather than moving from one employer to another (meaning the employer was aware of both sides of the situation and no termination of her employment was, in fact, required). That said, there are still lessons to be learned.

  • From an employer's perspective, before acting make sure that there is an effective resignation. If it is ambiguous, take steps to clarify the employee's intentions. Why is the employee resigning? What notice are they giving? Is the termination date clear?
  • From an employee's perspective, don't resign before receiving an unconditional offer. This will avoid the complications of having to ask for a resignation to be retracted in the event of the conditions of the offer not being fulfilled. Generally, notification of termination of employment cannot be withdrawn unilaterally.

Brodies Workbox

More advice on notice and resignations is available on Workbox, Brodies' online HR portal, including sections on effective resignations and next steps after a resignation.

Often an offer of employment will be conditional on receipt of a satisfactory reference. Workbox also contains newly updated materials on references including information on asking for references and giving references.

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