When it is not reasonable in the circumstances for the person receiving the notice to construe it as a resignation.
In East Kent Hospitals University NHS Foundation Trust v Levy, the EAT upheld the decision of an employment tribunal that an employee's letter giving notice was not a valid resignation because of the particular circumstances at the time of sending the letter.
Mrs Levy worked for the NHS Trust as an assistant administrator in the health records department. Some issues arose during her employment: she had a difficult relationship with one of her colleagues and there were concerns about her absence record. Mrs Levy applied for an internal transfer to the radiology department, which she was offered, conditional on successful pre-employment checks.
Mrs Levy wrote to the hospital's operational manager, Mr Gorton-Davey on 10 June 2016 (following an incident with a colleague) giving one month's notice. Mr Gorton-Davey wrote back accepting what he called her "notice of resignation", setting out her last day of work within the health records department and wishing her well with her future employment. However, he did not at this stage take the usual steps following this letter which he normally took when an employee was leaving the Trust. For example, he did not explain how outstanding holiday entitlement would be dealt with or fill in a staff termination form.
On 16 June 2018, the role in the radiology department was withdrawn because of Mrs Levy's absence record. Mrs Levy contacted HR about retracting her notice and was told that her manager had discretion whether or not to agree to her retraction. The Trust received legal advice that it did not have to accept a retraction of resignation. It was decided that, because of her absence record, Mrs Levy should not be permitted to retract her resignation. On 26 June 2018, Mr Gorton-Davey wrote to the claimant to set out her last day of employment and details for recouping pay for unaccrued annual leave which she had taken. It was at this stage that he filled in the staff termination form.
Mrs Levy brought an unfair dismissal claim to an employment tribunal. It found that Mrs Levy had not offered a valid resignation as the wording of her letter was not clear and unambiguous and it was not reasonable for the recipient to construe the letter as being a resignation from employment. The tribunal found that Mr Gorton-Davey had not actually taken the notice letter to be a resignation from employment with the Trust but only as giving notice on the internal role. Evidence before the tribunal showed that another employee had given notice on an internal role in much the same way and that this was not taken as a resignation from the Trust. Since Mrs Levy had withdrawn from the radiology role, she was entitled to remain within her health care role. In denying Mrs Levy that role, the tribunal went on to find that the NHS Trust had dismissed Mrs Levy and that she had been unfairly dismissed.
While it is true that a valid resignation cannot be unilaterally retracted, employers should be aware that in some circumstances, an employee may not have issued a valid resignation at all. For example, in cases where an employee resigns in a moment of anger or distress. In such cases, it is advisable to give the employee the opportunity to withdraw their resignation given in the heat of the moment. In the case of Mrs Levy, her notice was, in the circumstances, reasonably construed as referring only to her internal role and not to her employment with the Trust.
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