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For more than 10 years we have provided companies of all sizes and in a variety of sectors with uncomplicated, innovative and affordable human resources advice and on-site support ensuring that your people are an asset to your company and not a liability.

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With the National Minimum Wage (NMW) now almost fifteen years old, and with another increase pending on 1st April 2017 HMRC have issued a list of the most elaborate excuses they've been given by employers for not paying the appropriate rates:

No to Ambiguity and Yes to Common Sense

Alan Kitto

A recent Employment Appeal Tribunal (EAT) decision gave HR practitioners an important reminder of the dangers of ambiguity. There was perhaps a second lesson too, one of needing to apply common sense. 

The question being considered by the EAT in East Kent Hospitals University NHS Foundation Trust v Levy was, does giving ‘notice’ amount to an unambiguous act of resignation?

The EAT’s answer was, not necessarily. 

The employee worked as an Administrative Assistant in the trust's records department and had received a conditional offer of a role in the radiology department of the same trust. She sent a letter saying ‘Please accept one month's notice from the above date’.

The conditional offer was subsequently withdrawn and the employee then sought to retract what she then described as her 'notice of resignation'. The employer refused, the claimant's employment ended and she brought an unfair dismissal claim.

The employment tribunal held the employee’s notice to be ambiguous, not necessarily referable to resignation (of employment), a conclusion later upheld by the EAT.

As a consequence, objective analysis of how the reasonable recipient would have understood the words was required. The tribunal was entitled to conclude that the employer had understood the words as merely intended to signify the move from the records department to radiology and that that was the objectively reasonable interpretation.

Whilst the employer sought to rely on the wording of the employee’s subsequent retraction of what she described as her 'notice of resignation', the EAT cautioned against taking account of subsequent events unless genuinely explanatory of the earlier intention. That was not an inevitable conclusion in this case.

There is always an overarching requirement for an employer to act ‘reasonably’ and in this case it was decided that the employer had acted unreasonably in the way it chose to interpret the employee’s initial letter based on the wording of subsequent correspondence. 

As HR professionals, it’s hard to understand how the trust’s HR department, and then the trust’s legal team allowed this matter to reach an Employment Tribunal let alone appealing it to the EAT; this feels very much to us as though the employer had simply decided that it didn’t want to retain the Claimant’s services.

Were common sense to have prevailed, when the employee explained her intentions in her original letter, she should have been allowed to return to her original role. The fact that the employer lost this case is of no surprise at all and, speaking personally, a waste of trust money that could have been put to much better use.