Adecco Group UK & Ireland v Gregory & Anor

Whether an agency worker was dismissed is a question of fact. A communication said to terminate employment must be read objectively, as a whole and in its context. A letter which offers the worker a choice to seek further assignments or to end the relationship does not, without more, establish dismissal.

When deciding whether it is just and equitable to extend the time limit for a claim under the Agency Workers Regulations 2010, a tribunal must address the claimant’s knowledge of the facts giving rise to the claim. It must not substitute the different question of when the claimant believed that employment had ended.

The Claimant worked for Scottish Water through Adecco, which the Employment Tribunal found to be her employer. Her Scottish Water assignment ended in April 2013. Adecco later sent her a P45 and a letter stating that it would assume her employment had terminated if she did not contact it within two weeks.

In decisions delivered in May and October 2014, the Tribunal held that Adecco had dismissed the Claimant upon receipt of that letter. It also held that her Regulation 5 claim under the Agency Workers Regulations 2010 was out of time, but extended time because it was just and equitable to do so. Adecco appealed both rulings.

The central issues were whether the letter objectively effected a dismissal and whether the Tribunal had correctly exercised its discretion to extend time.

1. Appeals allowed. The finding that Adecco dismissed the Claimant upon her receipt of the letter of 3 July 2013 could not stand. The Tribunal had relied squarely on that letter without setting out and objectively analysing its terms in their full factual context.

2. A notice of dismissal or resignation is ordinarily construed objectively. The question was who, in reality, ended the contract of employment. The letter offered the Claimant a choice: she could ask Adecco to continue seeking work, or confirm that she wished to end her employment. It lacked the irrevocability of a formal notice and left open further employment. On the evidence identified, it was either perverse or inadequately reasoned to treat the letter alone as a dismissal.

3. The Appeal Tribunal could not substitute a finding that there had been no dismissal. The reason for the end of the relationship remained a factual issue. If the Claimant had stopped working in response to alleged unacceptable conduct, a constructive-dismissal claim might arguably arise, subject to the Tribunal deciding whether amendment was required and should be permitted.

4. The extension of time under Regulation 18(4) of the Agency Workers Regulations 2010 was also flawed. The Tribunal identified as relevant when the Claimant knew the facts giving rise to her claim, but instead considered when she believed that her employment had ended. Its exercise of discretion therefore involved an error of approach, although a properly directed tribunal could potentially conclude that an extension was just and equitable.

5. Both issues were remitted to a fresh Tribunal: whether there was a dismissal, when it occurred and whether any claim was in time; and whether time should be extended for the Agency Workers Regulations claim. A fresh Tribunal was required because the original Tribunal had already expressed a view on the discretionary question.

• Employment Appeal Tribunal: Adecco’s appeals from the Employment Tribunal’s May and October 2014 decisions were allowed. The disputed issues were remitted to a fresh Tribunal.
• Employment Tribunal: Held that Adecco was the Claimant’s employer, that she had been dismissed by Adecco, and that it was just and equitable to extend time for her claim under the Agency Workers Regulations 2010.