Can a dismissal be implied by the inaction of an agency employer to find work for its employee?
No, held the EAT in Sandle v Adecco.
The employee was an agency worker employed by the agency but working on assignment at another company. When her assignment ended, the agency failed to take any steps to find her other work and assumed that she was not interested in further agency work.
The employee made no attempt to contact the agency, but subsequently brought a claim of unfair dismissal. On appeal, the EAT held that in the absence of any communication of dismissal by the employer and no resignation by the employee, there was no dismissal, nor could one be implied by the inaction of the employer. The employment relationship was, therefore, still continuing when the employee brought her claim, she could not prove she had been dismissed, and her claim failed.
To prove dismissal, the employer's unequivocal intention to dismiss must be communicated to the employee.
Learn Comment
Whilst this case is specific to an agency worker, it does make the point that employers should not simply rely on non-attendance at work as evidence that the employee has resigned.
With thanks to John Cook of Cook Solicitors, for preparing this case summary and to Daniel Barnett’s Employment Law Bulletin.
