The case we are going to look at today (Zulhayir v JJ Food Service Ltd) is one which involves the potentially tricky issue of when, whether and how a dismissal occurs. We’ll therefore look at the following four elements:
- The law relating to unfair dismissal
- The facts in Zulhayir v JJ Food Service Ltd
- The Employment Appeal Tribunal’s judgment
- Our thoughts on Zulhayir v JJ Food Service Ltd
The law relating to unfair dismissal
Under s.94(1) Employment Rights Act 1996 employees possess the right not to be unfairly dismissed by their employer. Looked at crudely, the main issues that arise (although these are complicated in themselves, as the current case demonstrates) are:
- Did a dismissal occur (and if so, how and when)?
- Was this dismissal unfair (both procedurally and/or substantively)?
We’ll look at the first element today – when and how does a dismissal occur?
There are three broad ways in which a contract of employment can be terminated: termination by the employer, termination by the employee (resignation), and the end of a fixed-term contract. In most cases the fact of whether a dismissal has occurred is a relatively simple one – the employer either notifies the employee that they’re being (summarily) dismissed or the employee hands in their notice (or resigns without notice, depending on the circumstances).
However, if the intention to dismiss the employee or for the employee to resign is unclear then the Employment Tribunal must decide on the balance of probabilities whether a dismissal has actually occurred on the facts available to it. In cases involving ambiguous wording the words must be given the meaning that they would have in their normal workplace context.
This case addresses 3 issues relating to unfair dismissal:
- How was the dismissal alleged to have taken place?
- Did a dismissal take place?
- When did the dismissal take place?
The facts in Zulhayir v JJ Food Service Ltd
The Claimant (the employee) commenced work with the Respondent (the employer) in November 2001. In January 2005 the Claimant sustained a serious injury at work which rendered him unable to carry out his previous duties. He was then absent from work on sick leave almost permanently.
The Claimant’s contract of employment stated that the Claimant must inform the Respondent of any change in address. In January 2006 the Claimant had been evicted from his previous residence and moved to a new accommodation. He did not inform the Respondent of this change in address.
On 28 June 2006 a letter was sent by the Respondent by recorded delivery to the Claimant’s previous address. This letter was returned. In the letter the Respondent requested whether the Claimant still wished to work for the Respondent. It further stated that if the Respondent did not hear from the Claimant by 5 July 2006 the Respondent would assume that the Claimant had resigned.
The Claimant (for obvious reasons) did not reply to the Respondent by 5 July 2006. However, he was notified by letter on 20 May 2009 by the Respondent’s solicitors in his claim for personal injury against his employer that he had been treated as having been ‘self-dismissed’ on 5 July 2006. The Claimant subsequently submitted a claim for disability discrimination, breach of contract, and unfair dismissal on 28 July 2009.
The Employment Appeal Tribunal’s judgment
The Employment Tribunal considered the above issues and arrived at the following conclusions:
- The Respondent was alleging that a “self-dismissal” had taken place. This is not possible under English employment law. If a Claimant is in repudiatory breach of his contract of employment then the employer must accept the breach and terminate the contract. The Respondent had not in this case communicated acceptance of the breach to the Claimant.
- Following on from the above, a dismissal did take place but not until the Claimant received the letter from the Respondent’s solicitors on 20 May 2009. The time limit for his unfair dismissal claim (leaving aside his disability discrimination claim) was therefore 19 August 2009.
- The Claimant had submitted his various claims on 28 July 2009. His claims were therefore within the prescribed time limit.
This is an interesting look at the law relating to the dismissal and is also an illustration of when Employment Tribunal judges can make mistakes. The Claimant’s claim had previously been struck out at a Pre-Hearing Review as it was deemed to be outside the relevant time limits. The Employment Appeal Tribunal disagreed with this and stated that the unfair dismissal and disability discrimination claims were within time and could therefore proceed.
Point to take away: if there is no actual communication of the acceptance of the repudiatory breach of contract then it does not terminate the contract of employment.