An employee was not ‘self-dismissed’ when he failed to reply to a letter from his employer which stated he would be taken to have resigned unless he contacted the employer. It is not uncommon for an employer to write to an employee in such terms when, for example there has been a “spat” at work and an employee has stomped off without making clear the basis for his departure. Although the facts in the case of Zulhayir v JJ Food Services Ltd were not quite like that, the decision in the case on this point is important at a practical day to day level for employers and employees.
In January 2005 the claimant Z, a lorry driver, was seriously injured in an accident at work. This left him unable to do his job. In June he started a personal injury damages claim against his employer. He remained employed. When Z was evicted from his home in January 2006, he failed to tell the company of his new address as required by the employee handbook. In June 2006, no longer receiving sick notes from Z, JJFS Ltd sent a letter to his old address stating that if it had not heard from him by 5 July 2006 it would ‘conclude that you no longer wish to work for us and that you terminated your employment by your own volition.’ The letter was returned by the post office and no further attempt to contact Z was made.
Z first found out about the June 2006 letter which had ‘formally terminated’ his employment in a May 2009 letter to his new address from JJFS Ltd’s solicitors in the personal injury claim. In July 2009 Z lodged numerous claims including unfair dismissal. JJFS Ltd contended that Z’s employment had ended by dismissal, effective on 5 July 2006, and was therefore nearly three years too late.
An employment judge struck out the claims and held that Z’s failure to inform JJFS Ltd of his change of address, or to have post forwarded to his new address, amounted to an implied termination by him of his contract of employment. As Z had therefore resigned by 31 January 2006, his claim was out of time and should be struck out. Z appealed.
The Employment Appeal Tribunal (EAT) held that the Employment Judge was wrong. An earlier case had held that repudiation (in effect , a breach of contract) by the employee must be accepted by the employer, whereupon the contract is terminated by the employer in circumstances amounting to a dismissal by him.
On that basis, Z’s contract was not impliedly terminated by resignation (by 31 January 2006). Furthermore, the employer’s letter of 28 June 2006 did not amount to JJFS Ltd’s acceptance of repudiation or indeed resignation by Z, applying law set out in a 1998 case (Hassan v Odeon Cinemas). In the EAT’s view, no effective steps were taken by either party to terminate the contract of employment until the letter from JJFS Ltd’s solicitors in the personal injury claim reached Z in 2009, stating that his employment had been formally terminated on 5 July 2006. That was Z’s first opportunity to know that JJFS Ltd no longer wished to be bound by the contract. He accepted that state of affairs by commencing tribunal proceedings on 28 July 2009. Consequently, the complaints were brought in time and could proceed to a full merits hearing before a differently constituted employment tribunal.
Comment
So, it is not enough for an employer to state in a letter that “if you do not do X or Y we shall treat you as having resigned”. As is often the case, each case will turn on its particular facts, but an employer should think carefully whether it is actually better to deal with the issue (typically of unexplained absence) by a more formal process. By the same token an employee receiving such a letter would normally be well advised to reply if it is not his intention to resign.
