08 September 2011 #Employment
Often, when faced with an employee who has gone AWOL, employers will write to the last known address, stating that if the employee does not get in touch within a specified period, it will be considered that he has resigned. In the recent case of Zulhayir v JJ Food Services Ltd, the EAT has held that in such circumstances, it cannot be said that there has been a ‘self-dismissal’. The employee’s repudiatory conduct must be expressly accepted by the employer, whereupon the contract is terminated by the employer in circumstances amounting to a dismissal by it and not an implied termination or a ‘self dismissal’ by the employee.
The facts of this case are that in 2005, Z had an accident at work and he brought a personal injury claim against his employer, JJFS. Following an eviction from his house in 2006, Z did not inform JJFS of his new address. JJFS stopped receiving sick notes from Z. JJFS then sent Z 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 volition”. The letter was returned by the Post Office unopened and JJFS made no further attempts to contact Z.
It was not until May 2009, when JJFS’ solicitors in the personal injury claim contacted Z, that Z found out about the letter which had ‘formally terminated’ his employment. Z lodged numerous claims, including unfair dismissal.
At a Pre-Hearing Review, the Employment Judge struck out the claims (applying an old 1972 case), on the basis that there had been a ‘self-dismissal”. Z appealed. The EAT held that the Employment Judge was wrong to follow the old authority and instead should have applied the Court of Appeal’s decision in London Transport Executive –v- Clarke 1981, which held that repudiation by the employee must be accepted by the employer. The contract will then be terminated by the employer resulting in a dismissal.
In such cases there is almost always going to be a fair reason for the termination. However, employers should ensure that they still follow correct procedures to avoid a claim of procedural unfair dismissal e.g. even if an employee is invited to a hearing and does not reply, the hearing should still proceed in his absence and the evidence examined, notes taken of the meeting and the justification to dismiss documented.