Posted: Wednesday 31 August 2011
Self-Dismissal
Self-dismissal is said to arise where an employee acts in such a way that it can be implied from his actions that he has terminated the contract (i.e. by his repudiatory conduct he has terminated his employment). There have been conflicting decisions on whether, in these circumstances, an employer needs to act in a way which shows he accepts the employee's actions as termination of the contract but, more recently, it is clear that the repudiatory act on the part of the employee does need to be accepted by the employer for the dismissal to be effective.
In Zulhayir v JJ Food Services Ltd UKEAT/0593/10/SM, in circumstances which I see from time to time, the employer argued that their employee, Mr Zulhayir, had effectively self-dismissed. Mr Zulhayir had been on long term sick leave from early 2005 when in 2006 he moved house and failed to give his employer his new address. All contact between employer and employee then ceased and on 28 June 2006 the employer wrote to Mr Zulhayir stating that if he did not respond to the letter they would conclude he had terminated his contract of employment. In fact Mr Zulhayir did not hear about this until he received another letter at his new address in May 2009 - almost three years later which made clear that his employment was considered to have come to an end. When he became aware of this he claimed unfair dismissal but his employer argued that the claim was out of time as the dismissal had occurred three years earlier.
At a pre-hearing review on the issue of time-bar the employer was successful. The Tribunal held that Mr Zulhayir's conduct was such that he had effectively resigned in 2006 and accordingly his claim was out of time. However, the EAT have now held that Mr Zulhayir did not self-dismiss in 2006 because his employer had not accepted his repudiation of the contract. Interestingly, they held that the letter of 28 June 2006 did not amount to acceptance and they could see no action by either party thereafter which showed they intended to end the relationship until the letter in 2009. Mr Zulhayir had lodged a claim of unfair dismissal within three months of the 2009 letter and, as such, his claims were in time.
This may seem a slightly odd decision from an employer’s point of view but the case makes it clear that employers need to be very careful in these circumstances. Bear in mind though that this is a decision only on the question of whether the claim was brought in time or not. It may well be that the employer will still be able to argue that any dismissal was fair.
