Can a dismissal be implied by the failure of an agency employer to find work for an employee? This was a question considered by the Employment Appeal Tribunal (EAT) in the recent case of Sandle v Adecco. The EAT concluded that in order to prove there had been a dismissal, an employer’s unequivocal intention to dismiss must have been communicated to the employee in question.
By way of background Miss Sandle, the Claimant, was an agency worker employed by Adecco. When the Claimant’s assignment working at another company terminated, Adecco failed to take any action to find her further work and, given the Claimant’s failure to contact them, ‘assumed’ that she was not interested in further agency work. Clearly this was not the Claimant’s view and she subsequently brought a claim of unfair dismissal against Adecco.
The EAT held that in the absence of either a resignation from the employee or communication of dismissal from the employer, there could be no dismissal and nor could one be implied by either party’s inaction. It was therefore concluded that the Claimant remained employed at the time her unfair dismissal claim was lodged and thus, as she could not evidence the fact that she had been dismissed, her claim failed.
Despite this being an example of an agency worker relationship, employers should note that the principle in respect of dismissals remains the same – any dismissal should be communicated in clear and unequivocal terms so that there is no question from either side that the employment relationship is no longer continuing.
Please contact Katharine Kelly on 0151 239 1079 or firstname.lastname@example.org if you require advice regarding dismissals or indeed, resignations.