• Facebook
  • Twitter
  • LinkedIn
Call us now: 01243 836 840   [email protected]
Pure Employment Law
  • Who We Are
    • Nicola Brown
    • Peter Stevens
    • Elena Elsam
    • David Jones
    • Linda Nye
    • Brenda Cherry
  • For Employers
    • Advice on HR and People issues
    • Investigations, Hearings and Appeals
    • Restructuring and Redundancy
    • Defending Employment Tribunal Claims
    • Dismissal of Senior Executives
    • Contracts, Handbooks and Policies
    • Employment Law Training
  • For Employees
    • Settlement Agreements
    • Workplace Issues including Disciplinary and Grievance
    • Bringing an Employment Tribunal Claim
  • Employment Law Events
  • Legal Updates
  • Testimonials
  • Vacancies
  • Contact us
  • Search
  • Menu Menu

Does self-dismissal exist?

8th September 2011/in News /by Nicola Brown

Many employers will have come across the situation where an employee ‘goes AWOL’. Despite attempts to contact them, you are unable to find out when or whether they are planning to return. Sooner or later you have to draw the conclusion that the employee will not be coming back.

It is not unusual for an employer to write to an employee to say “if we do not hear from you within the next 7 days, we will consider that you wish to leave.” But is this valid in law? This point was considered recently in the case of Zulhayir v JJ Food Service Ltd in the Employment Appeal Tribunal.

Mr Zulhayir was employed by JJ as a driver. He had an accident at work and went off sick. Initially he provided medical certificates, but stopped after about six months when his statutory sick pay ran out. Some months later he moved house, but did not notify JJ (despite the staff handbook requiring him to do so).

Approximately a year after the last medical certificate, JJ wrote to him at the address they had on file, asking whether he wished to resign, and stating: “Please note that if you do not contact me by 5 July 2006 then we would conclude… that you terminated your employment by your own volition.” As Mr Zulhayir was not at the address, the letter was returned to JJ and they made no further attempts to contact him.

However, Mr Zulhayir was also pursuing a personal injury claim against JJ. In May 2009 JJ’s solicitors notified him that his employment had terminated on 5 July 2006, and enclosed a copy of their client’s previous letter. Mr Zulhayir had not previously been aware of the letter, and brought claims for unfair dismissal and disability discrimination.

At the Employment Tribunal, the Employment Judge determined that Mr Zulhayir’s failure to tell his employer his new address amounted to him terminating his employment – therefore his claims were struck out. Mr Zulhayir appealed.

The EAT specifically disagreed with the concept of “self-dismissal” and relied on London Transport Executive v Clarke (1981) which confirmed that if an employee is in fundamental breach of contract, that breach must be accepted by the employer, and would then amount to a dismissal by the employer. Here, the first step that either party had taken to terminate employment was in fact the letter from JJ’s solicitors in May 2009, therefore Mr Zulhayir’s claims could proceed.

So where does this leave employers? Unauthorised absence is potentially a fair reason for dismissal. The best approach is always to try to contact your absent employee by as many methods as you can (keeping records, and giving a clear deadline). If you do not receive a response, then you can terminate employment, which will be a dismissal, rather than a resignation, and therefore you will need to bear in mind a fair procedure and the ACAS Code. However, as dismissal is only effective when it is received, again it is worth communicating by as many methods as possible, to reduce the risk of the employee claiming not to have received it. It is always best to take advice on your specific situation.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected])

Please note that this update is not intended to be exhaustive or be a substitute for legal advice.  The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.
Share this article
  • Share on Facebook
  • Share on Twitter
  • Share on WhatsApp
  • Share on LinkedIn
  • Share on Reddit
  • Share by Mail
https://www.pureemploymentlaw.co.uk/wp-content/uploads/2019/02/Pure-Employment-Law-logo.jpg 0 0 Nicola Brown https://www.pureemploymentlaw.co.uk/wp-content/uploads/2019/02/Pure-Employment-Law-logo.jpg Nicola Brown2011-09-08 13:30:432014-12-03 15:58:49Does self-dismissal exist?

Join our mailing list

* = required field
Mailing Lists


Recent Legal Updates

  • FAQs about COT3s 18th December 2020
  • Can an employer withdraw a notice of redundancy? 18th December 2020
  • Will employers be able to insist that staff have the Covid-19 vaccination? 18th December 2020
  • Furlough over Christmas? 18th December 2020
  • Update – Furlough scheme extended 18th December 2020
Link to: Contact Us

Any questions? Why not get in touch!

Our advice is always given in plain English without any waffle, and we focus on providing practical solutions to our clients’ problems.

Contact us

LEGAL INFORMATION

Pure Employment Law | 1 Little London, Chichester, West Sussex, PO19 1PH
[email protected] | Tel: 01243 836840

Pure Employment Law is the trading name of Pure Employment Law Limited, registered in England and Wales with company number 07134294 and whose registered office is 1 Little London, Chichester, West Sussex, PO19 1PH. Pure Employment Law Limited is authorised and regulated by the Solicitors Regulation Authority with registration number 533794. A list of the company’s directors is available for inspection at the registered office

DISCLAIMER

The information contained in this website is for general information purposes only. The information is provided by Pure Employment Law and while we endeavour to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the website or the information, products, services, or related graphics contained on the website for any purpose. Any reliance you place on such information is therefore strictly at your own risk.

Privacy Policy | Cookies Policy | Terms & Conditions | How to make a complaint | Sitemap

© Pure Employment Law 2021

Scroll to top

This site uses cookies. By continuing to browse the site, you are agreeing to our use of cookies as defined in our cookie policy.

Accept Cookie Policy

Cookie and Privacy Settings



How we use cookies

We may request cookies to be set on your device. We use cookies to let us know when you visit our websites, how you interact with us, to enrich your user experience, and to customize your relationship with our website.

Click on the different category headings to find out more. You can also change some of your preferences. Note that blocking some types of cookies may impact your experience on our websites and the services we are able to offer.

Essential Website Cookies

These cookies are strictly necessary to provide you with services available through our website and to use some of its features.

Because these cookies are strictly necessary to deliver the website, refuseing them will have impact how our site functions. You always can block or delete cookies by changing your browser settings and force blocking all cookies on this website. But this will always prompt you to accept/refuse cookies when revisiting our site.

We fully respect if you want to refuse cookies but to avoid asking you again and again kindly allow us to store a cookie for that. You are free to opt out any time or opt in for other cookies to get a better experience. If you refuse cookies we will remove all set cookies in our domain.

We provide you with a list of stored cookies on your computer in our domain so you can check what we stored. Due to security reasons we are not able to show or modify cookies from other domains. You can check these in your browser security settings.

Google Analytics Cookies

These cookies collect information that is used either in aggregate form to help us understand how our website is being used or how effective our marketing campaigns are, or to help us customize our website and application for you in order to enhance your experience.

If you do not want that we track your visit to our site you can disable tracking in your browser here:

Other external services

We also use different external services like Google Webfonts, Google Maps, and external Video providers. Since these providers may collect personal data like your IP address we allow you to block them here. Please be aware that this might heavily reduce the functionality and appearance of our site. Changes will take effect once you reload the page.

Google Webfont Settings:

Google Map Settings:

Google reCaptcha Settings:

Vimeo and Youtube video embeds:

Other cookies

The following cookies are also needed - You can choose if you want to allow them:

Privacy Policy

You can read about our cookies and privacy settings in detail on our Privacy Policy Page.

Privacy Policy
Accept settingsHide notification only