Self-dismissal by failure to respond

Under normal circumstances, where employers decide to dismiss an employee, the decision and the reasons for the decision are communicated to the employee. However, in Zulhayir v JJ Food Services Limited the Employment Appeal Tribunal (EAT) was asked to decide whether or not a dismissal could take effect where the onus is placed on the employee to respond to a letter by a specified date failing which they would be deemed to have resigned.

Mr Zulhayir was a lorry driver. He was involved in an accident at work which left him unable to perform his duties. Mr Zulhayir commenced a personal injury claim against his employer and during the course of those proceedings (but not in connection with the proceedings) he was evicted from his home and failed to inform his employer of a new address as required by the employee handbook. During the period of absence, Mr Zulhayir also stopped providing his employer with sick notes. The employer eventually wrote to Mr Zulhayir stating that if it had not heard from him by a specified date it would conclude that he no longer wished to work for the company and that he would terminate his employment by his own volition. As the employer had not been informed of any new address, the letter was returned by the post office. Mr Zulhayir eventually found out that his employment had been terminated by his failure to respond during the continuance of the personal injury proceedings.

Mr Zulhayir commenced an unfair dismissal claim in the employment tribunal within three months of being informed of his dismissal but some three years after the termination of his employment. The claim was struck out at a pre-hearing review when the Tribunal held that Mr Zulhayir’s conduct in changing address and not notifying the employer amounted to an implied termination of his contract of employment and he was now out of time to bring an unfair dismissal claim.

However, on appeal, the EAT indicated that the Tribunal should have considered a more recent Court of Appeal decision (London Transport Executive v Clarke) which itself had considered and disapproved three earlier self-dismissal cases. The EAT held that in this case JJ Foods had not accepted Mr Zulhayir’s initial breach of contract but had instead chosen to affirm the contract and offer a final opportunity to continue his employment. As such, Mr Zulhayir’s employment had continued and his failure to respond to the company’s letter was not sufficient to act as a termination of his employment.

What does this mean for employers in practice?

Employers should be careful not to react to any alleged breach of contract in a way which indicates that the breach has been accepted. In cases like the one described above, the employer should either have unequivocally terminated the employment in response to Mr Zulhayir’s failure to update his contact details or they should have written to Mr Zulhayir instructing him to provide updated medical information and any failure to do so would be considered a refusal to obey a reasonable instruction which would result in disciplinary action up to and including dismissal. However, advice should always be sought on the merits of each individual case as the facts vary and may require alternative considerations.