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Case Update – A Dismissal Must Be Properly Communicated
In the case of Sandle v Adecco, the Employment Appeal Tribunal (EAT) upheld an employment tribunal decision that dismissal cannot be implied by the inaction of an agency employer to find work for its employee.
Miss Sandle was an agency worker employed by Adecco but working on assignment to another company. When that assignment came to an end, Adecco assumed that she did not want a further assignment and did not try to find her other work. Miss Sandle made no attempts to contact Adecco, but claimed unfair dismissal.
In order for a claim of unfair dismissal to succeed, the employee must first be able to show that they were actually dismissed. The Employment Rights Act 1996 defines dismissal as; i) the employer terminating the contract under which the employee is employed; or ii) the employee terminating the contract under which he is employed.
The Employment Tribunal Decision
The employment tribunal held that dismissal must be communicated to the employee. Here, Adecco had done nothing to communicate a dismissal to Miss Sandle. Conversely, she had not communicated a resignation. Therefore the employer/employee relationship continued and as such, Miss Sandle was unable to claim unfair dismissal as she had not actually been dismissed. She appealed the decision.
The Appeal Decision
The EAT held that dismissal must be communicated. It agreed with the employment tribunal that in the absence of any communication of dismissal by the employer, and no resignation by the employee, there was no dismissal. It further held that dismissal could be implied by conduct, but had to be “something of which the employee was aware”. As such, there could be no implied dismissal as a result of a lack of communication between the employer and the employee. Miss Sandle was unable to prove that she was dismissed and her claim for unfair dismissal failed.
What does this mean for employers?
This case highlights the importance of properly communicating a dismissal with the employee. Whilst here the lack of communication worked in favour of the employer, it could equally have a detrimental effect. If an employer/employee relationship continues indefinitely this could, for example, allow the employee to accrue sufficient service for additional employment rights such as redundancy pay and unfair dismissal rights. This is particularly important where an employer uses zero hours’ contracts. If the zero hours’ contract does not specifically provide for a break in continuity of employment between assignments, the employment relationship may be deemed to continue after the assignment ceases unless the employee is specifically dismissed. It is therefore important that if you have an employee on assignment, you ensure there is a proper process in place to clearly dismiss the employee (if that is the intention) when the assignment comes to an end – whether expressly or by way of an automatic provision within the zero hours contract. Be careful of course of employees with more than two years’ continuous service who will have unfair dismissal protection.
For any advice, contact our specialist employment team on 01392 207020 or e-mail firstname.lastname@example.org.