Self dismissal does not exist

Sometimes employers will write to employees who have been absent for a period of time, usually through sickness or perhaps an employee is reluctant to attend a disciplinary hearing, and tell the employee that if he does not attend work by a certain date that he will be deemed to have “dismissed himself”.  A recent case in the Employment Appeal Tribunal has confirmed that there is no such thing as “self dismissal”. In that case an employee had an accident at work in January 2005 and took sick leave. He provided sick notes until June 2006. The employer wrote to him claiming that they had tried to contact him. He did not reply. They asked the employee to confirm whether he still wanted to work for the company and that if he did not provide confirmation of that by July 2006 they said that his employment would be terminated “by his own volition”. This letter was returned unopened to the employer and the employer made no further attempt to contact the employee.

The employee had in fact moved in January 2006 but had failed to inform his employer of his new address. The employee made a personal injury claim against the company and the company’s solicitors in May 2009 sent a copy of their letter dated 28 June to the employee at his new address. As this was the first time that he had seen this letter he lodged a claim in the Employment Tribunal claiming unfair dismissal, disability discrimination, breach of contract and holiday pay.

In the Employment Tribunal the Judge struck out the employee’s claim on the basis that he had resigned on 31 January 2006 because of his failure to inform his employer of his change of address as well as failing to arrange for his post to be forwarded from his old address to his new one. The Employment Judge said that that amounted to an implied termination by him of his employment contract. In effect the Judge said that implied termination amounted to a “self dismissal”.

However, the Employment Appeal Tribunal reversed the decision. They held that the employer’s letter of 28 June was not an acceptance of the employee’s repudiation of contract or an “acceptance” of his “resignation”.

The EAT therefore held that he was still an employee of the company until 20 May. Therefore his complaints of unfair dismissal and breach of contract claims were brought within time (three months of 20 May 2009). As he was an employee up to 20 May 2009 the disability discrimination and holiday pay claims were still continuing claims.

The employers in this case had an opportunity to argue that the contract had been frustrated but that wasn’t properly pleaded on behalf of the employers in the Tribunal case and the EAT would not allow the employer to raise that as a point of appeal at the EAT hearing. It is likely that if the employer had argued initially that the contract had been frustrated because the employee had been out of the workplace for so long there was a reasonable chance that that argument would have been upheld.

So the point to take from this case is that employers should not assume when an employee has been absent for a long period of time that the contract of employment will automatically terminate or that there has been some form of self dismissal whether an ultimatum has been given or not. It is important for the employer to realise that unless dismissal is effectively communicated to the employee that the contract of employment will remain in force and if the contract has remained in force for a number of years the employee will be entitled to claim any accrued but outstanding holiday pay, any pay that he might be entitled to and the right to return to work if he was fit.  So if employers want to terminate the arrangement they must make sure that dismissal is effectively communicated to the employee. A letter that is sent to the wrong address or a letter that remains unopened (even deliberately) by the employee does not effectively communicate dismissal.