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So you've resigned, right?

Meredith Hurst Thursday, September 22, 2011

Can an employee 'dismiss' himself, if he fails to respond to a letter stating that he will be regarded as having resigned unless he contacts his employer? The short answer is usually 'no' but then it is not always clear cut. This is something that we are sometimes asked to advise upon by employers and it is better to exercise a cautious approach than make assumptions about the employee's status.

In the case ofZulhayir v JJ Food Services Ltd,the Employment Appeal Tribunal (EAT) held that a failure to respond to a letter did not constitute self-dismissal by the employee.

Mr Zulhayir a lorry driver had an accident leaving him unable to drive. He was evicted from his home and failed to tell his employer his new address as required by the employer's handbook. Some weeks later having no longer received sick notes from Mr Zulhayir, the company sent 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 own volition.'The letter was returned by the Post Office and the employer did not attempt to contact him again.

An earlier employment tribunal case was authority for the proposition that a breach of contract by an employee (which in the case of Mr Zulhayir amounted to a failure to submit sick notes or to inform the employer of his new address) was capable of terminating the contract without the need for the employer to accept the breach.  As such no dismissal occurs.

The EAT in Zulhayir held this to be wrong. The breach of contract by the employee must be accepted by the employer for the contract to be terminated amounting to a dismissal. As no effective steps were taken by either party to terminate the contract of employment, the employment continued.

It was only when the employee brought a personal injury claim some time later that his solicitors received a letter from the employer's solicitors stating that it had formally terminated his employment on 5 July 2006.  This was the first time that the employee came to know that the employer no longer wished to be bound by the contract. 

The lesson for employers is never to assume that because you may have sent a letter of dismissal to an employee (or in this case a letter assuming the employee's intention to resign) that the employment naturally comes to an end.  The good news for employees is that until dismissal is effectively communicated, then you may consider yourself employed.

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