Employment Tribunal overturns decision to strike out claim as "out of time" based on implied termination of contract or "self-dismissal" by the Claimant.
In this case the Employment Appeal Tribunal ("EAT") rejected the notion of employee "self-dismissal", and overturned the decision of the Employment Tribunal below. The EAT held that an employee was not "self-dismissed" in circumstances where he failed to reply to a letter from his employer stating he would be taken to have resigned unless he contacted them.
The Claimant in this case had been on long term sickness absence. The employer wrote to him in June 2006 to seek clarification of whether he had resigned. The EAT confirmed that the employer's letter did not amount to an acceptance of a fundamental breach of contract by the employee. As a result, neither the letter to the Claimant, nor his failure to respond to it, resulted in the termination of his employment.
Implications
This represents a further case in a line of decisions clarifying how and when a contract will be treated as terminated. The notion of asking an employee to take certain actions, failing which they will be treated as having resigned, will not be effective in terminating the contract of employment.
A failure to ensure that a contract has been terminated can have very undesirable consequences for the employer. This case shows that, in addition to the risk of the employee continuing to be entitled to pay and benefits, it could also result in an employee being able to lodge an unfair dismissal claim long after the date when the employer considered the employment to have come to an end.
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