No such thing as ‘Self-Dismissal’
Posted: 23rd December 2011
In Zulhayir v JJ Food Service Ltd., the Employment Appeal Tribunal (EAT) held that an employee was not ‘self-dismissed’ because he had failed to respond to a letter from his employer saying that he would be taken to have terminated his employment contract of his own volition if he did not reply.
The employee was absent on long-term sickness after he was injured in an accident at work. He didn’t receive the employer’s letter, sent in June 2006, because he had moved without informing them of his change of address. The letter was returned to the employer, which took no further action.
The employee finally received the letter three years later, in May 2009, when it was sent to him with a letter from solicitors acting for the employer regarding a personal injury claim he was pursuing against them. On 28 July 2009, he lodged claims of unfair dismissal and breach of contract.
At a pre-hearing review, the Employment Tribunal (ET) held that the employee’s failure to inform his employer of his change of address or to make arrangements to have his post forwarded amounted to an implied termination by him of his contract of employment. His claims were therefore struck out as being out of time.
The EAT held that the ET had erred in law by following Harrison v George Wimpey & Co Ltd. This approach was outdated. More recent case law has established that repudiation by one party cannot terminate a contract without acceptance by the other party. Repudiation by the employee must be accepted by the employer, and so the contract is terminated by the employer in circumstances amounting to dismissal.
In this case, no effective steps were taken by either party to terminate the contract until May 2009. It therefore followed that the complaints of unfair dismissal and breach of contract were brought in time.
A belated attempt by the employer to plead frustration of the contract failed. Had it pursued this argument from the outset, the outcome of the case might have been different.