Labour & European Law Review Weekly Issue 242 03 November 2011
Is it possible for an employee to dismiss themselves? The Employment Appeal Tribunal (EAT) has just said in Zulhayir v JJ Food Service Ltd that they cannot, even though Mr Zulhayir had failed to respond to a letter from the company stating that it would assume he had resigned unless he got in contact with them.
Mr Zulhayir, a delivery driver for the company, had a serious accident at work in January 2005 which meant he could no longer do his job. He provided medical certificates to his employer until June that year and stopped receiving sick pay in mid-July. He then initiated a personal injury claim in June 2005.
In January 2006, Mr Zulhayir was evicted from his accommodation. The company wrote to him in June stating that if they did not hear from him by 5 July, they would assume he no longer wanted to work for them and that he had terminated his employment “by his own volition”. However, Mr Zulhayir had failed to notify his employer of his change of address (contrary to a requirement in the employee handbook) and the letter was returned, undelivered.
In May 2009, Mr Zulhayir received a letter from Kennedys solicitors who were acting for JJ Food Service Ltd in the personal injury claim, which included a copy of the company’s letter of June 2006. He lodged a Tribunal claim complaining of unfair dismissal, disability discrimination, non-notice of notice pay and unpaid holiday pay.
The company argued that as he had been dismissed in July 2006, his claim was out of time.
Relying on the 1972 case of Harrison v George Wimpey and Co Ltd (which allowed for the concept of implied termination of the contract by the employee), the Tribunal judge struck out the claim.
As he had failed either to inform the company of his change of address or to arrange for his post to be forwarded to his new address, the judge said he had impliedly terminated his contract of employment. He was therefore deemed to have resigned by 31 January 2006 (around the time he was evicted) and his claim was out of time.
The EAT, however, disagreed. It said the judge was wrong to follow Harrison, given the judgement by the Court of Appeal in the 1981 case of London Transport Executive v Clarke, which held that a repudiation of the contract by an employee must be accepted by the employer.
In other words, employees cannot dismiss themselves, they have to be dismissed by the employer. That meant that Mr Zulhayir could not have terminated his own contract by 31 January 2006.
Nor had the contract ended on 5 July 2006. Although Mr Zulhayir was off sick and no longer entitled to sick pay, he was still pursuing a personal injury claim through his solicitors.
JJ Food Service Ltd had not tried to make contact with him through his solicitors, nor had they taken any other steps to track him down until Kennedys wrote to him. In any event, the June letter did not amount to an acceptance of Mr Zulhayir’s resignation or a repudiation of his contact.
Neither party had taken effective steps to terminate the contract until he got the letter from Kennedys, which was the first time he became aware of his purported dismissal. He accepted that state of affairs by starting Tribunal proceedings.
That meant the claims were brought in time and should proceed to a full merits hearing before a new Tribunal.
The outcome may have been different if the respondent company had been allowed to introduce a new argument in the EAT - that in the circumstances the contract had been terminated by operation of law, namely frustration. The EAT would not allow that argument to be pursued saying that “it would not be right to allow the Respondent to advance a wholly different argument from the basis on which the PHR [pre-hearing review] proceeded”.