Dismissal or resignation? Deciding who ended the employment

Understanding whether an employee has resigned or has been dismissed is something that any UK Employment lawyer will want to know whether acting for an employer or employee in a case where Employment has come to an end. An employee who has been dismissed has the option of bringing a claim for unfair dismissal. In the case of an employee who has resigned, the best employment lawyers will explain that he or she can bring a claim for unfair dismissal only if he can show that the resignation was in response to a fundamental breach of contract by the employer – a ‘constructive’ dismissal. While it may be clear whether there has been a resignation or a dismissal, this is not always the case. The Employment Appeal Tribunal has recently considered a case in which an ‘ambiguous’ resignation letter was held not to be resignation from Employment, but simply confirmed the employee’s intention to move department within the employer organisation.

Dismissal or resignation – why does it matter?

The key issue for UK employment lawyers, as already mentioned, is that an employee who is dismissed will find it more straightforward to assert Employment rights and bring a claim for unfair dismissal. He will still have to prove that the dismissal was unfair – either because it was for an unfair reason, the process was unfair, or the dismissal was automatically unfair – but the first hurdle, that of the fact of the dismissal, is cleared. In the case of an employee who finds himself in an intolerable position at work and resigns, he must prove that the actions of the employer effectively forced him to resign before he can start to access those rights that arise on dismissal. The employee who resigns will usually find that they have an uphill struggle to prove that the resignation amounts to a ‘constructive dismissal’. He must prove a fundamental breach of contract by the employer and must show that he resigned in response to that breach. This can cause all sorts of difficulties.

Proving constructive dismissal is an uphill struggle that many Employment claim solicitors will confirm, so if there is an ambiguity and it is possible to show that there was no resignation and the Employment terminated as the result of dismissal, this will always be the preferable route.

The facts in East Kent Hospitals University NHS Foundation Trust v Levy

Mrs Levy had worked in the Respondent NHS Foundation Trust’s Records Department but had applied for and been offered a role in the Radiology department subject to pre-Employment checks. Once she had received her conditional offer, she wrote a letter offering ‘…one month’s notice from the above date’ to her manager. The manager accepted the notice, referring to her last day in the Records department, but did not take any of the action normally associated with a resignation from Employment, such as completing a staff termination form. The conditional job offer in the Radiology department was withdrawn as a result of her sick record, and at that point, the employer would not allow her to withdraw her resignation letter. It indicated that her Employment with the Respondent trust would end at the end of the notice period. She initially submitted a claim based on constructive dismissal, but subsequently amended her claim to allege that she had been directly dismissed.

The Employment Tribunal found that there had been a direct dismissal

Agreeing with Mrs Levy, the Employment Tribunal found that she had been dismissed by the Trust. The Employment Tribunal agreed that the letter Mrs Levy had sent was ambiguous as to whether she was resigning from the Records department to go to the Radiology Department, or was resigning from her Employment generally, but that it had been understood that it was the former (i.e. that she was giving notice of her intention to move from Records to Radiology.) Looking at it objectively, this was a reasonable construction of the letter. As a result, when the Trust wrote to Mrs Levy on 24th June 2016 advising that it would not allow her to retract her resignation, and that her last day of Employment would be 10 July 2016, it was effectively dismissing her.

The Employment Appeal Tribunal agreed that there was a dismissal and not a resignation

The Trust appealed the decision of the Employment Tribunal, but the Employment Appeal Tribunal agreed that Mrs Levy had not resigned from her Employment by her letter, and had been dismissed by the Trust. Although she had used the word ‘notice’ and in many other situations her letter could have been construed as indicating resignation from her Employment, in this case, the circumstances were different. In the context of the offer of the role in Radiology and the difficulties she was experiencing in the Records department, in this case, the letter had to be read as referring to the internal move from Records to Radiology and not as an intention to leave her Employment with the Trust altogether. The appeal was dismissed.

The key lesson that recommended employment solicitors will identify in this case is really for employers – if there is uncertainty about the intentions of an employee, it may be worth clarifying before taking any action. However, the case also highlights the need for employees to consider the implications of any correspondence they send to their employers. While ultimately, the claimant, Mrs Levy can bring her claim of unfair dismissal, she may well have preferred to stay in Employment, albeit in the Records department where she was unhappy, rather than bring a Tribunal claim to resolve matters.

OTS Solicitors represent both employers and employees in a wide range of employment law and HR matters, from Employment Tribunal claims, disciplinary and grievance matters, to redundancy and settlement agreements. We can offer support to organisations looking to review their HR policies and advise on Employment rights in the workplace. For more information or to talk to us in confidence about an issue you are facing, please call 0203 959 9123.