Case of the week: Zulhayir v JJ Food Service Ltd

Zulhayir v JJ Food Service Ltd

FACTS

Mr Zulhayir was a delivery driver for JJ Food Service Ltd. Mr Zulhayir was on long-term sick leave from January 2005, following an accident at work that resulted in serious spinal injuries.

In January 2006, Mr Zulhayir moved house and failed to notify JJ Food Service Ltd of his new address. All contact between Mr Zulhayir and the employer ceased. Having not received a current sick note, the employer wrote to Mr Zulhayir on 28 June 2006 stating that, if he did not contact it by 5 July 2006, JJ Food Service Ltd would conclude that Mr Zulhayir had terminated his contract of employment.

The letter was returned unopened and JJ Food Service Ltd made no further attempts to contact Mr Zulhayir, despite his having commenced a personal injury claim against it. JJ Food Service Ltd treated Mr Zulhayir as dismissed from 5 July 2006.

Mr Zulhayir did not in fact see the letter until May 2009, when he received another letter from JJ Food Service Ltd’s solicitors at his new address regarding his personal injury claim (which enclosed a copy of the letter). Mr Zulhayir promptly brought a claim for unfair dismissal, disability discrimination, breach of contract arising from failure to pay notice and unpaid holiday pay.

DECISION

At a pre-hearing review, Mr Zulhayir’s claim was struck out for being out of time. The judge found that Mr Zulhayir’s failure to inform JJ Food Service Ltd of his change of address in breach of his obligation contained in the handbook constituted implied unilateral termination by him.

On appeal, the Employment Appeal Tribunal overturned this decision and held that Mr Zulhayir was not “self-dismissed” because JJ Food Service Ltd had not accepted the repudiation of his contract. The letter did not amount to acceptance of Mr Zulhayir’s resignation and JJ Food Service Ltd should have attempted to contact Mr Zulhayir via his solicitors when the letter was returned. No effective steps were then taken by either party to terminate Mr Zulhayir’s employment until JJ Food Service Ltd’s letter in May 2009.

Mr Zulhayir’s claims for unfair dismissal and breach of contract were in time and were remitted to the employment tribunal. His claims for disability discrimination and holiday pay claims were continuing acts and therefore also in time.

IMPLICATIONS

This case highlights the importance of clear, effective and unambiguous communication between employers and employees, particularly in respect of termination of employment. The notion of “self-dismissal” was rejected by the EAT; both parties must act on a breach to terminate employment.

Employers must be pro-active; silence is not acceptance, and employers cannot rely on employees’ inaction to terminate employment.

Employers must be careful in such circumstances, as a failure to ensure that a contract has been terminated may not only entitle an employee to receive continuing pay and benefits, but may also allow them to bring a claim for unfair dismissal long after the date that the employer believed the employment relationship had ended.

It seems likely that, if JJ Food Service Ltd had pleaded frustration of contract at the pre-hearing review, its application for strike out could have succeeded on those grounds.

Clare Gregory, employment partner, DLA Piper

Practical guidance from XpertHR on resignations and dismissals

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