Situations sometimes arise in which an employer treats an employee as though he had dismissed himself. The most common context is where there is a period of silence on the part of the employee after a long period of sick absence. A recent case in the EAT served as a reminder that this is not a legally permissible option. When the employee concerned ceased to provide sick notes but remained absent, the employer wrote to him at his last known address giving him one week in which to confirm that he still wanted to work for the employer and telling him that if he failed to do so, his employment would be terminated “by [his] own volition”.
The employee had in fact moved some 6 months beforehand but had failed to inform the employer. It was not until some three years later that the employer’s letter was brought to the employee’s attention, as a consequence of a personal injury claim which he was pursuing against the employer.
The EAT ruled that the employee’s employment had not been effectively terminated. If an employer regards an employee as having repudiated his employment contract by failing to submit sick notes and remaining on unauthorised absence, the employer must make it clear to the employee that he accepts the repudiation so as to bring the employment to an end. This will amount to a dismissal by the employer. There is no such thing as implied termination or “self-dismissal”.
In this case the employer for some three years failed to take effective steps to inform the employee of its decision to treat him as having repudiated his contract. His employment was therefore treated as having continued during this period. The outcome of the case might have been different if the employer had argued that the employment had been frustrated by the long absence but it failed to raise this point in the Employment Tribunal and was therefore barred from raising it on the appeal to the EAT.
