Sandle v Adecco UK Ltd

For a direct dismissal under section 95(1)(a) of the Employment Rights Act 1996, the employer’s unequivocal intention to end the employment contract must be communicated to the employee. Communication may be express or may be implied objectively from conduct. The employee must, however, have been aware of conduct inconsistent with the contract’s continuation.

A potential constructive dismissal does not exclude a direct dismissal, but it does not itself establish one. In agency work, a failure to offer or seek further assignments may in an appropriate context support an inference of dismissal. The employee still bears the burden of proving that the employer communicated dismissal. A relationship left in stasis, without such communication, is not a dismissal.

The Claimant was employed by a recruitment business and assigned to work for BASF plc. BASF ended the assignment. The Respondent made only a cursory attempt to contact the Claimant and did not proactively seek further assignments. The Claimant also made no contact with it. A P45 recording the assignment end-date was generated internally but was not sent to her.

The Manchester Employment Tribunal held that the Claimant remained employed when she presented her claim. It found that the Respondent’s breach might have entitled her to resign and claim constructive dismissal, but that it had not directly dismissed her. The Claimant appealed, contending that dismissal could be implied from the Respondent’s inactivity under section 95(1)(a) of the Employment Rights Act 1996.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the Claimant had not proved a dismissal for the purposes of section 95 of the Employment Rights Act 1996.

2. A direct dismissal under section 95(1)(a) need not be communicated in express words. It may be inferred objectively from an employer’s words or conduct. The question is whether, in all the circumstances known to the employee, the employer communicated an unequivocal intention to treat the contract as at an end.

3. Communication remains necessary. Conduct such as removing an employee from payroll, issuing a P45, or replacing an existing post with a different role may constitute dismissal where it is brought to the employee’s attention and is inconsistent with continued employment. An internally generated P45 which was not sent to the employee did not communicate termination.

4. The possibility that the employer’s conduct amounted to a repudiatory breach capable of founding constructive dismissal did not preclude direct dismissal. The two may coexist. But a potential constructive dismissal does not mean that a direct dismissal has also occurred.

5. Agency-working context was material. A failure to provide further work may, in a suitable case, support an inference that an agency ended the contract. Here, however, the Claimant had not treated the Respondent’s breach as a constructive dismissal, neither party communicated an end to the relationship, and the Tribunal permissibly found that the employment remained in stasis. The burden remained on the Claimant to prove dismissal, which she had not done.

• Employment Appeal Tribunal: dismissed the Claimant’s appeal from the Manchester Employment Tribunal.
• Manchester Employment Tribunal: held that the Respondent had not dismissed the Claimant and that her employment relationship continued when she presented her claim.