Although handing in a letter offering a month’s notice can usually be interpreted as an act of resignation, the Employment Appeal Tribunal (EAT) held in East Kent Hospitals University NHS Foundation Trust v Levy that if the wording is ambiguous, tribunals have to adopt an objective test to decide how the letter would have been interpreted by the “reasonable recipient”.
Basic facts
Ms Levy, who had worked in the Trust’s records department for ten years as an assistant administrator, had a difficult relationship with one of her co-workers. As she was unhappy in her role she successfully applied, subject to pre-engagement checks, for an alternative role in the radiology department.
After an incident with a member of staff in records the morning after she heard back from radiology, she handed in a letter to her manager which stated simply: ““Please accept one Month’s Notice from the above date”. Her manager replied the same day, accepting her “notice of resignation” and setting out her last working day in the department. He did not complete a staff termination form as these did not apply to internal transfers, nor did he make any reference to Ms Levy leaving her employment more generally or to any outstanding issues regarding (for example) accrued leave entitlement.
When the job offer was subsequently rescinded, Ms Levy sought to withdraw what she described as her “notice of resignation”, but the Trust refused. She brought a claim of constructive unfair dismissal, which she later amended to unfair dismissal. For its part, the Trust argued that she had resigned.
Tribunal decision
The tribunal found that although Ms Levy’s letter had been ambiguous in the sense that it was unclear whether she was giving notice to leave the records department or her employment with the Trust more generally, her employer had clearly understood that she was giving notice of her departure from records.
As this was an objectively reasonable interpretation of the letter, the tribunal held that she had been unfairly dismissed when the Trust subsequently treated the letter as a letter of resignation from her employment as a whole.
EAT decision
Dismissing the Trust’s appeal, the EAT held that the tribunal was right to find that the wording in the letter was ambiguous. The expression “giving notice” did not just refer to resignation from employment and, given the special circumstances of this case, it would be wrong to simply take the reference to “giving notice” at face value.
The tribunal was also right to adopt an objective test to determine how Ms Levy’s short letter would have been construed by the “reasonable recipient”, taking into account the particular circumstances known to the reader of the letter at the relevant time. In this case, the tribunal concluded that, when the manager read Ms Levy’s letter, he did not in fact construe it as a letter of resignation from employment; rather, he read it as notice of leaving the records department.
This interpretation was supported by his letter to Ms Levy which specifically spoke in terms of her last day of work within the records department. Apart from anything else, if he had really thought she was proposing to leave the Trust, he would have addressed issues such as outstanding accrued leave entitlement and the completion of a staff termination form.
On that basis, the EAT concluded that the tribunal was correct to hold that Ms Levy’s manager had genuinely and reasonably construed her letter as notice only of her intended resignation from records, not from her employment with the Trust.