Zulhayir v J J Food Service Ltd

An employee’s repudiatory conduct does not, without acceptance by the employer, terminate the contract of employment or amount to a resignation. The employer must accept the repudiation and communicate that acceptance effectively. A letter which is never received and is not otherwise communicated cannot terminate the contract. The effective date of termination arises when the employee first has the opportunity to know that the employer no longer wishes to remain bound and accepts that position. Continuing discrimination and holiday-pay complaints may remain subject to transitional provisions according to when the breach arose.

The claimant had been absent from work after a serious workplace injury. He changed address without notifying the respondent. The respondent sent a letter to his former address stating that, unless he made contact, it would conclude that he had terminated his employment. The letter was returned undelivered.

The Employment Tribunal held that the claimant had impliedly terminated his employment by failing to update his address and struck out his claims as out of time. The claimant appealed. The central issues were whether he had resigned, when the contract ended, whether the claims were in time, and whether statutory grievance procedures applied.

1. Appeal allowed. The strike-out order was set aside and the claims were remitted for a full merits hearing before a differently constituted Employment Tribunal.
2. The Employment Tribunal had erred in relying on the implied-termination approach in Harrison v George Wimpey & Co Ltd [1972] ITR 188. The later Court of Appeal authority in London Transport Executive v Clarke [1981] ICR 355 adopted the approach in Marshall (Thomas) (Exports) Ltd v Guinle [1978] ICR 905: repudiation by an employee does not terminate the employment contract unless accepted by the employer.
3. The respondent’s letter of 28 June 2006 did not amount to acceptance of any repudiation or resignation. It was returned by the Post Office, and the respondent made no further attempt to communicate it, including through solicitors who were already dealing with the claimant’s personal injury claim. The approach in Hassan v Odeon Cinemas Ltd [1998] ICR 127 was applied.
4. The contract was not effectively terminated until the respondent’s solicitors’ letter of 20 May 2009 reached the claimant and told him that his employment had been formally terminated. The claimant accepted that position by commencing proceedings on 28 July 2009, applying the principle in Gunton v Richmond-upon-Thames BC [1980] ICR 755.
5. The unfair-dismissal and breach-of-contract claims were therefore in time. The Disability Discrimination Act and holiday-pay complaints were continuing claims and did not wholly arise before 6 April 2009. Paragraph 3 of the Employment Act 2008 (Commencement No.1 Transitional Provisions and Savings) Order 2008 therefore did not prevent the claims proceeding.

• Employment Appeal Tribunal: allowed the appeal, set aside the strike-out order, and remitted the matter for a full merits hearing.
• Employment Tribunal: held that the claimant had impliedly terminated his employment by failing to update his address and struck out the claims as out of time.