Can an employee ‘self-dismiss’?

The Employment Appeal Tribunal (EAT) has recently held that an employer cannot treat an employee as ‘self-dismissed’ in circumstances where the employer sent a letter to the employee stating he would be taken to have terminated his contract of employment unless he responded.

In the case of Zulhayir v JJ Food Service Ltd UKEAT/0593/10, the employee, Mr Zulhayir,  had been on long term sick leave between 2005 and 2006 and had moved house without informing his employer of his new address. There had been no contact between the parties until JJ Food Service Ltd sent a letter in June 2006 informing Mr Zulhayir his contract of employment would be taken to have terminated unless he responded. He did not reply. Almost three years later, the employee received another letter at his new address which made clear his employment was considered to have come to an end.

A claim for unfair dismissal was brought by Mr Zulhayir. The employer defended the claim on the basis that it was out of time as Mr Zulhayir had been dismissed three years earlier and therefore was outside the three month time limit to bring a claim for unfair dismissal.

At the pre-hearing review, the employer successfully argued the claim was out of time, however Mr Zulhayir appealed the decision and the EAT held that Mr Zulhayir did not ‘self-dismiss’ in 2006 as his employer had not accepted his repudiation of the contract. There had been no acceptance by the employee of the June 2006 letter and between 2006 and 2009 no actions between the parties could have been taken to have signalled the end of the relationship until the letter in 2009 was received by the employee. As the employee had brought the claim within three months of receiving this letter, his claim was filed within the time limit.

Although this case is strange on the facts, it does emphasise that resignation and termination need to be unequivocal; they should be in writing, and importantly received by and accepted by both parties. It is important to note, however, that although the claim was held to have been filed within the three month time limit, it may still be argued by the employer that the dismissal was fair.