The EAT has held that an employee on long term sick leave, who did not inform his employer of a change of address, did not dismiss himself. In doing so, it approved old authority that repudiatory conduct by an employee is not sufficient on its own to bring a contract of employment to an end: the employer must also accept that conduct, and inform the employee that they are treating the contract as terminated.
In Zulhayir v JJ Food Services Ltd, the employer had been trying, unsuccessfully, to contact the claimant during a prolonged period of sickness absence. Eventually, they wrote to him asking him to confirm whether he still wanted to be employed by them. If they didn't receive a response, they said, his employment would terminate "by his own volition". The letter was returned unopened. It later transpired that the claimant had moved home and not informed his employer. A tribunal held that his employment terminated at the time he moved home, by his resignation. His failure to inform his employer of his new address amounted to an implied termination by him of his contract.
On appeal, the EAT considered existing authority on the concept of "self-dismissal", and in upholding the claimant's appeal, followed a Court of Appeal decision from 1981, which expressly disapproved of the idea that one party can terminate a contract without the acceptance of another. The EAT considered that as the employer in this case could have in fact made contact with the claimant through his solicitors (whom he had instructed in connection with a personal injury claim he was pursuing against the company), the employer had not taken reasonable steps to make contact with him. The letter from the employers, which the claimant did not receive, could not therefore amount to acceptance of his resignation, as reasonable steps had not been taken to communicate this acceptance. His failure to respond could not amount to a repudiation of contract. His employment was not therefore terminated until the point at which the claimant subsequently learned, through his solicitors, that the company no longer considered themselves bound by the employment contract.
Impact on employers
- When employees don't turn up for work for no good reason, or become unresponsive during prolonged sickness absence, employers often try to argue that they have somehow terminated their own contracts. This case provides useful clarification that employment contracts are no exception to the normal rule that a repudiated contract is not terminated unless that repudiation is accepted by the other party. Where an employee breaches their contract in this way, but still claims an entitlement to work, the employer must then deal with the breach. If the contract is terminated, as this will be a dismissal by the employer, and not a resignation, employers must bear in mind the need to act fairly and lawfully.