Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

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:

  1. The law relating to unfair dismissal
  2. The facts in Zulhayir v JJ Food Service Ltd
  3. The Employment Appeal Tribunal’s judgment
  4. 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:

  1. Did a dismissal occur (and if so, how and when)?
  2. 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:

  1. How was the dismissal alleged to have taken place?
  2. Did a dismissal take place?
  3. 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:

  1. 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.
  2. 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.
  3. The Claimant had submitted his various claims on 28 July 2009. His claims were therefore within the prescribed time limit.

Our thoughts

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.

About Chris Hadrill

Chris is a specialist employment lawyer at Redmans. He specialises in contentious and non-contentious employment matters, including breach of contract claims, compromise agreements and Employment Tribunal cases. He writes on employment law matters on a variety of websites, including Direct 2 Lawyers, Lawontheweb.co.uk, LegalVoice, the Justice Gap and his own blog. Contact Chris by emailing him at chadrill@redmans.co.uk

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Leave a Reply

Your email address will not be published. Required fields are marked *

 

Our awards

Request a callback

Your first name (required)

Your last name (required)

Your email (required)

Your telephone number (required)

Brief details of your enquiry

Contact us

Please feel free to discuss your own position and concerns. Contact your nearest office on:

T: 020 3397 3603
E: enquiries@redmans.co.uk
W: www.redmans.co.uk

Testimonials

4.76 Average

204 Reviews

Anonymous

Excellent advice and customer service.

Posted 1 month ago

Aneet G

I would definitely recommend Redmans. Very impressed with service provided. They were extremely proactive in handling my case which made things easier for me. Provided sound advice and resolution. Special credit for this goes to Chris who dealt with my case with great determination and consideration.

Posted 1 month ago

Fern M

Very efficient and friendly

Posted 1 month ago

Neville S

A professional and friendly service, which I would highly recommend.

Posted 1 month ago

Daniel T

Extremely helpful and made a bad situation much more manageable. Where other solicitors seemed disinterested in my situation Redmans immediately made me feel like it was a team effort to achieve a more favourable outcome

Posted 1 month ago

Paul T

Excellent, quick and informative. Chris was a real star and gave me confidence during the uncertainty if a redundancy settlement.

Posted 1 month ago

Marina E

Felt in very capable hands was listened to and given excellent advice. Would not hesitate to recomend and use again if needed.

Posted 1 month ago

Rosa B

Fabulous service all round.

Posted 1 month ago

Anonymous

Redmans were quick to respond to my enquiry and dealt with my case professionally and personably. I received sound advice and was put at ease by Chris Hadrill, Partner.

Posted 1 month ago

Alkhas K

Excellent service.

Posted 1 month ago

Mathias G

Contacted them regarding my end of employment agreement. Chris Hadrill dealt with it and was done and handed back to employer same day more than happy with there service.

Posted 2 months ago

Mark W

Most professional from start to finish offering very a personal service. Most impressive and quick when dealing with the matters in hand.

Posted 3 months ago

Anonymous

Posted 3 months ago

submit

I am very glad I came across Redmans Solicitors. Fantastic service!

Posted 3 months ago

Anonymous

Fantastic communication, always happy to answer queries, highly recommended.

Posted 3 months ago

Wavenie B

They were very straight to the point, friendly and understanding people. I felt they had my best interest. They were easy to get hold of, replies were almost instant. 5/5 for customer service

Posted 3 months ago

Christina P

Caroline was fantastic to work with - extremely knowledgeable, supportive, thorough and honest. I definitely recommend Redmans!

Posted 3 months ago

Anonymous

Very well done and fast support. Professional and reliable. Highly recommended!

Posted 3 months ago

Helene L

They were very knowledgable in the respected area in terms of change in law/regulations that is crucial for the clients who are seeking for legal arvice.

Posted 3 months ago

Sara R

Very helpful and wonderful advice

Posted 3 months ago

Marie D

very good service all digitalised

Posted 3 months ago