'Unless you reply, you will be taken to have resigned'

Posted by Ruth Christy on
It can be frustrating to have on your books an employee who is absent on sick leave, perhaps even having exhausted sick pay entitlement, but who does not justify their continued absence or reply to correspondence. You may even suspect that such an employee has moved house without informing you.

Can you write to the employee, saying that unless you receive a response, you will assume they have resigned?

Unfortunately it is not so simple. Firstly, you as the employer will be required to show that you have taken reasonable steps to ascertain whether the employee is still at their current address, and if not, obtain their new address.

Secondly, an employee will not be taken to have "self-dismissed" if they do not respond to your letter. In general it will be for you, the employer, to dismiss the employee (and communicate that to them. 

You may have good reason for this (such as unauthorised absence if sick notes are not sent in, or not informing you that they have moved), but the employee's conduct or inaction will not bring the contract to an end by itself. Such a case recently considered by the EAT provides a good example of the legal principles.

In this case, Mr Zulhayir had an accident at work and went on sick leave. He started a personal injury claim against the employer. He provided sick notes for about six months, but not thereafter, and his SSP stopped shortly afterwards.

About a year later, his employer sent him a letter by recorded delivery, claiming that it had not received any correspondence from him despite attempts to contact him, and asking him whether he wanted to carry on working for the employer. The letter stated, "if you do not contact me by 5 July 2006 then we would conclude that you no longer wish to work for us and that you terminated your employment by your own volition".

The letter was returned by the post office and the employer did not make any further enquiries. In fact, Mr Zulhayir had moved house in January 2006 without informing his employer of his new address. He only became aware of the letter in 2009 when a copy was sent to him by the solicitors of the employer's insurer, defending the personal injury claim.

The EAT rejected the idea that there was an implied termination of the contract (by resignation) when Mr Zulhayir failed to reply. Case law established that even where the employee had "repudiated" the contract (i.e. shown that s/he did not intend to be bound by it), the employer has to "accept" that and dismiss the employee accordingly.

Neither the failure to inform his employer of his new address, nor the failure to reply to the employer's letter brought the contract to an end. The employer, through its insurers, could have found out the employee's new address to dismiss him, but did not make any attempt to do so.

Mr Zulhayir's employment only ended in 2009 when he became aware of the 2006 letter and brought an ET claim.

NB: in this case there were potential arguments that the employment contract was "frustrated" by law, although such an argument does not often succeed. However, the employer raised it too late in the day for the EAT to consider.

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Ruth provides guidance for clients and keeps them up to date with the fast pace of change in employment law.

Ruth Christy
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