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In the case of East Kent Hospitals University NHS Foundation Trust v Mrs P Levy UKEAT/0232/17, the Employment Appeal Tribunal upheld the decision of the Employment Tribunal that an employee had not resigned, but was in fact dismissed by her employer.

The facts in East Kent Hospitals University NHS Foundation Trust v Mrs P Levy

Mrs Levy was employed by East Kent Hospitals University NHS Foundation Trust (the “Trust”) in the records department of one of their hospitals.  She had a difficult relationship with one of her colleagues.  She had also been spoken to about her attendance record by the hospital’s operational manager, Mr Gorton-Davey.

Mrs Levy applied for a role in the radiology department and had received a conditional offer for the role.  On 10 June 2016 following an argument with another colleague, Ms Levy handed Mr Gorton-Davey a letter which stated, ‘Please accept one month’s notice from the above date’.  Mr Gorton-Davey then sent Mrs Levy a letter which accepted Mrs Levy’s resignation and noted that her last day of working in the records department would be 8 July 2016.  Crucially, Mr Gorton-Davey did not deal with matters such as outstanding holiday pay and he did not complete the staff termination form, both of which he ordinarily would have when someone resigned from the Trust.

On 16 June 2016 Mrs Levy was advised that her conditional offer of employment in the radiology department had been withdrawn due to her absence record.  She then sought to withdraw her notice.  The Trust took legal advice and HR advised Mr Gorton-Davey that it was up to him whether or not he wanted to allow Mrs Levy to retract her resignation.  In light of her sickness absence record Mr Gorton-Davey decided not to allow Mrs Levy to retract her resignation.  He then went about promptly completing a staff termination form, which was stated to be only for use ‘by employees leaving…not internal transfers’ and dealt with Mrs Levy’s overtaken holiday.

Mrs Levy brought a claim for unfair dismissal in the Employment Tribunal (the “ET”). The Trust argued that Mrs Levy had not been dismissed, but had in fact resigned.

The decision of the Employment Tribunal

The ET found that Mrs Levy had been dismissed by the Trust.  It found that Mrs Levy had not used clear and unambiguous words in her letter dated 10 June 2016 and that the letter failed to identify the subject in respect of which notice had been given.  The notice could have been in relation to her role in the records department or notice of termination of her employment with the Trust.

The ET also found that even if the words used had been clear and unambiguous, there were ‘special circumstances’ which required Mrs Levy’s words to be considered objectively.  Those special circumstances included the fact that Mrs Levy was unhappy in the records department, that she needed to work to support her family and to assist her in caring for her father, that her offer from the records department was only conditional and that she was unaware that her sickness absence might adversely affect the offer.  The Trust was aware of all of those special circumstances.  The ET found that in light of all of that, an objective consideration of the letter would lead a reasonable observer to conclude that Mrs Levy’s letter of the 10 June 2016 was simply Mrs Levy notifying the Trust of her intention to accept a new role with the Trust. It was not a termination of her employment.

The ET therefore decided that on the balance of probabilities Mrs Levy had established that she did not resign from her employment on 10 June 2016, but was dismissed by the Trust on 24 June 2016 when it treated her letter as a valid resignation.  The Trust appealed to the EAT.

The decision of the Employment Appeal Tribunal (EAT)

The Employment Appel Tribunal ( the “EAT”) dismissed the Trust’s appeal.  What was important was what was said by Mrs Levy on 10 June 2016 and how that had been understood by the Trust at the time.  As a result, the ET was entitled to find that Mrs Levy was giving notice from her role in the records department and was not resigning from the Trust.  It was also clear when viewed objectively that that was exactly what the Trust understood themselves at the time.  The ET were entitled to find that the language used by Mrs Levy in her letter of 10 June 2016 was not clear and unambiguous, or, in the alternative, it had to be read in light of the special circumstances that existed at the time.

Therefore, the ET had had to decide who had ended the contract of employment in circumstances where Mrs Levy had submitted an ambiguous communication.  Whilst both parties agreed that the ET were correct to consider how the letter of 10 June would be construed by a reasonable recipient who knew about the particular circumstances that existed at the time, the Trust appealed the ET findings on the basis that they failed to have regard to the subjective views of Mrs Levy and Mr Gorton-Davey.  However, the EAT was not persuaded that there was any evidence to support an assertion that Mr Gorton-Davey had treated Mrs Levy’s letter of 10 June 2016 as anything other than a resignation from her post in the records department.

Finally, the EAT concluded that the ET had been entitled to refuse to consider the parties’ respective actions after Mrs Levy gave notice on the 10 June 2016.  It was permissible for the ET to focus on the letter of 10 June 2016 and the circumstances surrounding it, rather than trying to construe what Mrs Levy said with the benefit of hindsight and considering what the parties said and did at a later stage, when circumstances had changed.

Our solicitors’ views on the case of East Kent Hospitals University NHS Foundation Trust v Mrs P Levy

Sacha Barrett, an associate in the employment department at Redmans, made the following comment on the case: “This case serves as a reminder that where there is any ambiguity about whether an employee has actually given notice to terminate their employment or where there are special circumstances that exist surrounding the notice given, an employer should always ensure the employee genuinely meant to end the employment relationship if they do not want to face an unfair dismissal claim.”

The decision of the Employment Appeal Tribunal in East Kent Hospitals University NHS Foundation Trust v Mrs P Levy: UKEAT/0232/17can be found here.

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

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