In Zulhayir v JJ Food Services Ltd the Employment Appeals Tribunal (“EAT”) has held that an employee was not ‘self-dismissed’ when he failed to reply to a letter stating he would be taken to have resigned unless he contacted the employer.
In January 2005 Mr Zulhayir, a lorry driver, had an accident at work which seriously injured his spine leaving him unable to do his job. In June of that year he brought a personal injury claim against his employer. When Mr Zulhayir was evicted from his home in January 2006, he failed to tell his employer of his new address as required by the employee handbook. In June 2006, no longer receiving sick notes from Mr Zulhayir, the employer 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 Mr Zulhayir was made. Mr Zulhayir first found out about the June 2006 letter which had ‘formally terminated’ his employment in a May 2009 letter to his new address from the company’s solicitors in the personal injury claim. In July 2009 Mr Zulhayir lodged numerous claims including unfair dismissal. The company contended that Mr Zulhayir’s employment had ended by dismissal, effective on 5 July 2006, and his claim was therefore out of time.
At a pre-hearing review an employment judge struck out the claims, following an old case that suggested any repudiatory conduct by an employee terminates the contract of itself, without the need for the employer to accept it, and that no dismissal therefore occurs. He held that Mr Zulhayir’s failure to inform his employer 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 Mr Zulhayir had therefore resigned by 31 January 2006, his claim was out of time and should be struck out. Mr Zulhayir appealed.
The EAT held that the Employment Judge was wrong to follow the old case in the light of the Court of Appeal’s decision in London Transport Executive v Clarke which followed later. There, the majority of the Court held that repudiation 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, Mr Zulhayir’s contract was not impliedly terminated by resignation by 31 January 2006. Furthermore, the letter of 28 June 2006 did not amount to his employer’s acceptance of repudiation or indeed resignation by him. In the EAT’s view, no effective steps were taken by either party to terminate the contract of employment until the letter from the company’s solicitors in the personal injury claim reached Mr Zulhayir in 2009, stating that his employment had been formally terminated on 5 July 2006. That was Mr Zulhayir’s first opportunity to know that the company 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.
This case serves as a warning to employers who are faced with an employee who has simply ‘disappeared’. A letter to the employee stating that no response from them will result in the employee resigning is not good enough. Express wording needs to be used to say that the contract has been repudiated by the employee and the employer accepts that, terminating the contract.
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