Communicating a dismissal
The requirements when communicating a dismissal were looked at by the Employment Appeal Tribunal (EAT) in the recent case of Sandal v Adecco .
Overall, the EAT found for the respondent and dismissed the appeal, supporting the Employment Tribunal in the contention that a dismissal cannot be implied solely by the inaction of an agency employer to find work for its employee. This article explores the circumstances of this case and how it fits in with existing case law.
The claimant, Miss Sandal, was employed as an agency worker by the respondent, a large recruitment agency and was working on assignment at another company. When this assignment ended, the agency failed to take any steps to find her alternative work and, in the absence of any contact from the claimant, assumed that she was no longer interested in agency work. The claimant subsequently brought a claim for unfair dismissal.
Employment Judge Horne found for the respondent at the final merits hearing on the basis that, at the time of submitting her claim, the claimant was still employed by the respondent.
In reviewing the evidence, Judge Horne agreed that the respondent had breached its contractual obligations by failing to use its best efforts to promote the claimant to its clients and maximise her assignment opportunities. As a result, he concluded that, had the claimant resigned as a result of this breach of contract, she would have had a claim for constructive unfair dismissal.
In the absence of the claimant’s resignation or any communication from the respondent terminating her employment, Judge Horne found that there had been no dismissal.
The claim was subsequently appealed to the Employment Appeal Tribunal on the grounds that the Employment Tribunal had erred in its finding that no dismissal had been communicated. It was felt that clarification was needed for agency workers regarding what would constitute an implied dismissal in these circumstances.
Employment Appeal Tribunal
At the EAT, the ruling from the Employment Tribunal was upheld and the appeal dismissed. In coming to this conclusion, the tribunal considered s.95(1)(a) of the Employment Rights Act (ERA) and various case law, including Hogg v Dover College  IT 39 EAT, Kirklees Metropolitan Council v Radecki  ICR 1244 CA and Kelly v Riveroak Associates Ltd  UKEAT/0290/05/DM.
The starting point, s.95(1)(a) ERA, sets out that an employee is dismissed by his or her employer if “the contract by which he is employed is terminated by the employer (whether with or without notice).”
Case law provides that the dismissal does not have to be expressly stated and can be implied by the conduct of the employer. Such conduct can include removing an employee from the payroll (Kirklees), offering the employee different terms on a reduced salary (Hogg) and sending a P45 to the employee (Kelly).
However, in each of these cases, the conduct that implied dismissal was communicated in one way or another to the employee.
In supporting the Employment Tribunal’s ruling, the EAT in Sandal v Adecco found that there had been no such communication between the respondent and the claimant. As such, the claimant could not be said to have been dismissed and her claim for unfair dismissal, and the subsequent appeal must fail.
The EAT rejected the claimant’s assertion that this failed to protect vulnerable employees, identifying that s.95 of the ERA afforded the claimant the option of resigning in response to the respondent’s conduct and making it clear that she considered that conduct to amount to a constructive dismissal. By failing to contact her employer, she had chosen not to use that option.
The decision in Sandal v Adecco confirms the position that a dismissal needs to be communicated to an employee in order for it to be effective.
In bringing a claim for unfair dismissal, the burden is on the claimant to prove that there has been a dismissal. An omission on the part of an employer (i.e. to pay an employee or proactively seek out work for them) does not shift this burden to the employer and does not on its own mean that a dismissal has been communicated.
What appears to be of crucial importance when considering these cases – specifically with respect to the relationship between an agency worker and his or her employer – is not the omission itself but the response of either party to that omission.
Posted on Feb 14th, 2017 by Lyons Davidson