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Is there such thing as "self-dismissal"?

30th September 2011
The Employment Appeals Tribunal has recently given a ruling which really marks an end to the debate over whether it is possible that an employee can dismiss him or herself.

The case in question referred back to case from the 1970s (ancient history in terms of employment law!) and early 1980s which had suggested that an employee can effectively dismiss him or herself. In the present case the Employment Appeals Tribunal (the EAT) roundly rejected the previous case law.

In the recent case, Zulhayir v JJ Food Services Ltd, the  EAT has ruled that an employee was not "self-dismissed" when he failed to reply to a letter from his employer stating that he would be taken to have resigned unless he contacted the employer by a set date.

Mr Zulhayir was a lorry driver. In 2005 he suffered an accident at work which left him with serious spine injuries preventing him from being able to carry out his work. In January 2006 he was evicted from his home, and failed to tell his employer of his new address, as was requried under the terms of the employer's staff handbook. By June 2006 no more sick notes were being received by the employer from Mr Zulhayir. The employer therefore wrote to him, to his old address, stating that if they had not heard back from him by the 5th July 2006 they 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 was made by the employer to contact Mr Zulhayir. 

Mr Zulhayir did not find out about the letter until May 2009 through a letter sent to his new address by the solicitors dealing with the personal injury claim arising from the work accident in 2005. In July 2009 Mr Zulhayir commenced claims in the Employment Tribunal, including for unfair dismissal. The employer argued that Mr Zulhayir's employment had in fact ended when he failed to respond to the letter by the 5th July 2006.

At an initial hearing the Employment Tribunal rejected the claim from Mr Zulhayir, relying on the old cases from the 1970s which suggested that repudiatory conduct by an employee terminates the contract of employment without the further need of the employer to "accept" that breach by the employee. The Tribunal ruled that the failure of Mr Zulhayir to provide details of his new address amlunted to a repudiatory breach of his contract, and so amounted to an implied termination of his employment.
The EAT however said that the decision of the Employment Tribunal was wrong, as it had failed to follow later authorities which indicated that any repudiation by the employee must actually be "accepted" by the employer, which in turn means that there will then be a dismissal by the employer (not by the employee him or herself). Furthermore the EAT went on to say that as no effective steps were actually taken by the employer to terminate the employment of Mr Zulhayir until Mr Zulhayir had received the letter regarding the personal injury claim in 2009, which had referred to the employment as having ended in July 2006. So the claim in the Employment Tribunal could go ahead, as it was therefore brought within the required 3 months from the actual termination of Mr Zulhayir's employment.

This case highlights the fact that the Employment Tribunal will not read the silence or failure of an employee to respond to a letter such as that sent to Mr Zulhayir as the terminatiion of employment. An employer in this case would therefore actually be treated as terminating the employment only on taking a futher step, such as then writing again to confirm that it was in fact terminating the employment due to the failure to respond by the set date. The case demonstrates that there has to be a positive decision to terminate the employment, rather than a failure to respond by a set date.

Employers should therefore note that this case shows that they cannot simply assume from the silence or lack of response from an employee that the employee has resigned, or carried out his or heer own "self-dismissal". No termination takes effect until the employer does something to indicate (and communicate to the employee) that it is in fact treating the failure to respond as the termination of employment.

At Hallett Employment Law Services we can advise you on avoiding the problems raised in this case. If you need any assistance or advice on these matters do not hesitate to contact us. 

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