Communication of dismissal
Labour & European Law Review Weekly Issue 497 23 November 2016
It is self-evident that in order to bring a claim of unfair dismissal, the claimant has to have been dismissed. In Sandle v Adecco UK Ltd, the Employment Appeal Tribunal (EAT) held that dismissal has to be communicated in some way to the employee (for instance, by virtue of the conduct of the employer), the most important point being that the employee is aware of it.
Ms Sandle, who was employed by Adecco as an agency worker, was assigned to one of its most important clients, BASF, as a commercial lawyer. She enjoyed working there and wanted to secure a permanent role.
In October 2013, however, BASF decided that her assignment should be terminated and instructed Adecco to that effect on 30 October. It also gave notice to Ms Sandle on the same day that her assignment would end on 30 November.
She worked her month’s notice but did not attempt to contact Adecco during that time. The manager at the agency, Mr Orr, left one voicemail message on her mobile but made no other attempts to contact her or to find other work for her. Instead he just assumed that she was not interested in another assignment. The agency’s payroll department generated a P45 for her in February 2014, but failed to send it to her.
At the end of February 2014, Ms Sandle brought claims of unfair dismissal against both BASF and Adecco. At a preliminary hearing it was held that as she was only an employee of the agency, she could not bring a claim against BASF.
Although the tribunal found that the agency had breached a contractual obligation (to use its best efforts to find her work), Ms Sandle had not resigned in response to that breach and so could not claim constructive unfair dismissal.
With regard to her unfair dismissal claim, the tribunal held that as dismissal had to be communicated by the employer to the employee, Ms Sandle had, in fact, remained employed, albeit in limbo, at the time she presented her claim.
Ms Sandle appealed, arguing that a dismissal can be implied by the inaction of an employer to find work for their employee.
The EAT, however, dismissed her argument of an “omission” on the part of the agency to act in accordance with its contractual obligation to proactively seek out assignment opportunities for her.
It also dismissed her argument that this failure to provide her with work could amount to a dismissal, not least because it was not unusual for agency workers to experience gaps between assignments
Instead, it held that the tribunal was right to conclude that the employment relationship had not ended. The fact that she had failed to treat the agency’s conduct as a constructive dismissal and that the agency had not sent her a P45 was particularly relevant in this regard.
It agreed with the tribunal that dismissal has to be communicated. This could include communication by virtue of the employer’s conduct (such as a direct dismissal or a repudiatory breach), as long as the employee was aware of it.
Ultimately Ms Sandle could not prove that she had been dismissed on any basis, including implied communication of dismissal by conduct.