Can an employee self-dismiss?

A recent EAT considered whether failing to turn up for work can amount to self-dismissal.  An employer tried unsuccessfully to contact an employee during a long period (nearly six months) of sickness absence.  A letter was then sent explaining that if no response was received by a specific date it would be taken that he had terminated his employment – self-dismissed.  The letter was returned unopened, because the employee had changed his address without notifying the employer.

At the ET the employee claimed unfair dismissal, which was rejected since he had not performed as required by his contract and so had repudiated it.  The Tribunal found that his failure to inform his employer of his change of address, and/or arrange for post to be forwarded to him, amounted to an implied termination by him of his employment.

However, the decision was reversed by the EAT, which ruled that repudiation of the contract by the employee must be accepted by the employer, and when that happens the employer terminates the contract, which in turn amounts to a dismissal by the employer.  This effectively means that an employee cannot ‘self-dismiss’ and there can be a claim for unfair dismissl.

This means that if an employee breaches the contract by not working, but still claims an entitlement to work, the employer has to take action to address that breach.  This may then result in disciplinary action or dismissal, which will then be subject to the normal tests of: showing a fair reason; and that it was a reasonable response in the circumstances.