UNFAIR DISMISSAL – Dismissal/ambiguous resignation
The Claimant had experienced difficulties in the department in which she was employed by the Respondent (the Records Department) and had successfully applied for a position in the Radiology Department, subject to pre-appointment checks. Having received her conditional offer from Radiology, and after an altercation with another member of staff in Records, the Claimant handed in a letter, stating ‘Please accept one Month’s Notice from the above date’. The manager to whom this was addressed responded the same day accepting the Claimant’s ‘notice of resignation’ and referring to her last working day within the Records Department. He did not complete a staff termination form (only applicable for those leaving the Respondent’s employment and expressly stated not to be used for internal transfers) and made no reference to the Claimant leaving her employment more generally or to any outstanding issues regarding (for example) accrued leave entitlement. Subsequently the offer of employment in Radiology was withdrawn, due to the Claimant’s sick leave record, and the Claimant sought to retract her ‘notice of resignation’. The Respondent, however, refused to agree to this and confirmed that her employment would end at the end of her notice period.
The Claimant, acting in person, brought a claim for constructive unfair dismissal in the Employment Tribunal (‘ET’). She later received legal advice and was permitted to amend her claim to assert that she had been directly dismissed by the Respondent. The Respondent resisted that claim, asserting she had resigned. The ET agreed with the Claimant. It found that her letter had been ambiguous as to whether she was giving notice to leave the Records Department or to leave her employment but that the Respondent had in fact understood the Claimant was giving notice of her departure from the Records Department, which was – applying an objective test – a reasonable construction of the letter; the Claimant had thus established that she had been dismissed and succeeded on her complaint of unfair dismissal. The Respondent appealed against the finding that the Claimant had been dismissed.
Held: dismissing the appeal
Although the word ‘notice’ in the employment context might generally signify an unambiguous notification of termination of the contract, that was not so in the particular circumstances of this case; the Claimant had an offer of a position within another department and her ‘notice’ could equally be taken to refer to her notification of her departure from the Records Department. Given the ambiguity arising from the Claimant’s letter giving notice, the ET had correctly applied an objective test when determining how the words used would have been understood by the reasonable recipient of the letter. It had looked at the Respondent’s immediate response to the letter and had permissibly found that the Claimant’s notification had been understood to relate to her departure from the Records Department and not from her employment more generally. In context – in particular, having regard to the fact that it was known that the Claimant was intending to take up another position, still in the Respondent’s employment – the ET found that the Respondent had genuinely and reasonably construed the Claimant’s ‘notice’ as referring to the termination of her position in Records before she moved to Radiology and not to the termination of her employment. Allowing that this was a mixed question of fact and law, the ET had not erred in its approach or in its conclusion that the Claimant’s employment had been terminated by dismissal and not resignation.
Citations:
[2018] UKEAT 0232 – 17 – 0506
Links:
Jurisdiction:
England and Wales
Employment
Updated: 10 July 2022; Ref: scu.625442