Are you liable for an employee's Facebook post?
Emma Edis | 20.08.2019
11.12.2018 Emma Edis
In the case of East Kent Hospitals University NHS Foundation Trust v Levy, an employee in the Trust’s Records department successfully claimed for unfair dismissal following an unusual sequence of events.
The woman had worked in the Records department for around 10 years but had recently had issues with a colleague which resulted in a higher absence record than would normally be expected. She went on to apply for – and get – a job in the hospital’s Radiology department and wrote to her existing manager using the words “please accept one month’s notice from the above date”.
The manager took this to mean notice of termination of her employment and responded to acknowledge the assumed resignation. A few days later the Radiology department withdrew their offer of employment, so the employee tried to retract her statement of notice, but the records department refused her and wrote to confirm her date of termination.
The woman brought an unfair dismissal claim against the Trust and won her case. The Trust had argued that the words in the claimant’s letter were unambiguous and clearly notice of termination. But the tribunal concluded that the letter could either have been notice of intended transfer or notice of termination, and therefore would lead the reasonable observer to agree that the claimant was merely notifying her manager of her intention to accept the offer, not of her intention to terminate her employment.
The Records department had looked at the Trust's immediate response to the letter and found that the claimant’s notification had been understood to relate to her departure from the Records department, not from the Trust in general.
Although this is a unique scenario and the outcome is heavily weighted on the facts, it’s a good reminder of the importance of ensuring clarity of communication whenever an employee resigns or offers to give notice to resign.
Employers should always seek to understand why the employee is resigning and how much notice they intend to provide. If in doubt, you should seek legal advice at the risk of being found to have committed unfair dismissal – as in this case!