A tribunal ruling in the recent matter of Levy v East Kent Hospitals University NHS Trust has shone a light on the potential problems arising when an employee gives notice and then, for whatever reason, changes their mind.
In this matter Ms Levy was an employee in the hospital’s records department, where she was unhappy. She applied for a position in another department, got the job subject to certain checks, and gave one month’s notice to the head of the records department. The date of her departure having been agreed, the offer of the new post fell through because of Ms Levy’s sickness record. She then asked to withdraw the notice she had given to the records department, but the manager refused on the grounds that he felt that in open competition he would not offer her a job. Whereupon Ms Levy, stating that she had never intended to resign, just to change departments, claimed unfair dismissal.
At the ensuing tribunal and again at the appeal it was agreed that Ms Levy’s intentions had been sufficiently vague as to be genuinely problematic. She had ‘given notice’, but because she had not used words and phrases such as ‘resigning’ or ‘terminating the contract’ it was argued that her actions had amounted to little more than notifying her manager of her plan to change departments subject to the successful outcome of the checks made on her record. She had not clearly indicated any wish or intention of leaving the employ of the NHS and, in the opinion of the tribunal, the NHS had thus acted unreasonably.
In general, if an employee wishes to withdraw a resignation they cannot do so unless the employer agrees. The lesson to be learned from this particular matter is of the importance of context. The ruling has placed the responsibility firmly on employers to look at the precise context of a letter giving notice and, in instances such as transfers to another department within the same organisation, double-checking may be needed if it is any way unclear as to what the employee is actually proposing to do. Likewise, should an employee resign in anger because of a stressful situation, good practice will be to give the person a day or two to calm down and then enquire as to whether they really intended to act as they have.
In a matter such as this a mistake can, it is clear, lead to a successful claim of unfair dismissal. It is, therefore, always best never to assume anything if there is even the slightest grey area.
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