East Kent Hospitals University NHS Foundation Trust v Levy

An apparently clear notice of resignation ordinarily takes effect according to its objective meaning. However, its meaning must be assessed in the circumstances known to the reasonable recipient. Where the words are ambiguous, or special circumstances make a face-value reading inappropriate, the tribunal must decide objectively whether the employee really intended to terminate employment.

Later events may assist only if they genuinely explain the intention at the time of the alleged resignation. They must not be used with hindsight where they merely show a later change of mind or changed circumstances.

The claimant worked in the respondent's Records Department and had received a conditional offer of an internal post in Radiology. After a workplace incident, she wrote: “Please accept one Month's Notice from the above date”. Her manager accepted her notice but referred only to her final day in the Records Department.

When the Radiology offer was withdrawn, the claimant sought to retract her notice. The respondent refused and later stated that her employment would end. The Employment Tribunal held that the letter was ambiguous and that the claimant had been dismissed rather than having resigned. The respondent appealed.

The central issue was whether the claimant's letter terminated her employment or merely notified her departure from the Records Department.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the claimant had been dismissed, rather than that she had resigned from the respondent's employment.
2. Although giving notice in an employment relationship will often mean termination of that relationship, the words used here were capable of referring either to departure from the Records Department or to resignation from employment. The claimant was about to transfer internally to Radiology. The tribunal therefore permissibly found the letter ambiguous.
3. Alternatively, the tribunal was entitled to hold that the known circumstances required the words not to be read at face value. The approach described in Kwik-Fit, and essentially approved in Willoughby, is a caution that a recipient may need to satisfy itself that an apparently unequivocal notice was truly intended as a notice of resignation or dismissal.
4. Once ambiguity was established, the applicable inquiry was objective: how would an informed reasonable recipient have understood the letter when received? The tribunal was entitled to rely on the manager's contemporaneous reply, which referred to the claimant's last day within Records, and on his failure then to take steps normally associated with ending employment. Those matters supported its finding that he genuinely and reasonably understood the notice as concerning the claimant's departure from that department only.
5. Subsequent references by the claimant to resignation did not require a contrary conclusion. Later events are relevant only insofar as they genuinely explain the earlier communication. Here they followed the withdrawal of the internal job offer and arose in materially changed circumstances. The respondent's later insistence that employment end therefore amounted, on the tribunal's permissible findings, to dismissal.

• Employment Appeal Tribunal: appeal dismissed. The tribunal upheld the Employment Tribunal's conclusion that the claimant had been dismissed.
• Employment Tribunal, Ashford: upheld the claimant's complaint of unfair dismissal, finding that she had not resigned from the respondent's employment.