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])