Ed Williams and Caroline Musgrave appeared before the EAT in July 2016 to argue an important case for agency workers and those who bring or defend unfair dismissal claims in the context of agency employment. Navid Pourghazi discusses the Judgment.
The EAT’s decision in Sandle v Adecco UK Limited is a must-read for practitioners who bring or defend unfair dismissal claims in the context of agency employment. Crucially, the EAT considered how Tribunals should determine when there has been a dismissal under section 95 Employment Rights Act 1996 (“ERA 1996”) as a result of inaction by both a Respondent employment agency and a Claimant agency employee.
Relevant legal principles
Section 95 ERA 1996 provides the circumstances in which an employee shall be regarded as dismissed for the purposes of bringing an unfair dismissal complaint. In particular, section 95(1)(a) provides that an employee shall be regarded as dismissed when:
“the contract under which [the employee] is employed is terminated by the employer (whether with or without notice)”.
The Claimant was an agency worker employed by the Respondent employment agency, but worked on assignment as a commercial lawyer to another entity. When the Claimant’s assignment came to an end, the Respondent failed to take proactive steps to find her other work, and made little attempt to contact her, assuming that she was not interested in further agency work. The Claimant also made no attempt to contact the Respondent, and subsequently brought a claim of unfair dismissal.
The ET decision
The ET found that the Respondent had done nothing to communicate a dismissal to the Claimant, and therefore the Claimant’s contract of employment could not have been terminated under section 95(1)(a) ERA 1996. Since the employment relationship was continuing when the unfair dismissal complaint had been lodged, the claim could not proceed. The ET also found that if the Claimant had resigned, she might well have been entitled to regard herself as constructively dismissed, but that is not what had happened.
The EAT decision
On an appeal brought by the Claimant, the EAT accepted that a termination of a contract of employment for the purposes of s.95(1)(a) could be implied from an employer’s conduct, and that the circumstances giving rise to the possibility of a constructive dismissal could co-exist with a direct dismissal (Hogg v Dover College  ICR 39 EAT).
Nonetheless, an employer’s unequivocal intention to dismiss still had to be communicated to an employee – either by words or by conduct – and the burden of proof remains on the employee to demonstrate that he or she has been dismissed.
In this case, the ET had not erred in asking whether the Claimant had established that the Respondent had communicated an unequivocal intention to treat the contract of employment as at an end. Moreover, the ET had reached a permissible conclusion that the Claimant had failed to discharge this burden.
Sandle v Adecco UK Limited establishes that, where there is inaction by both an employment agency employer and an agency employee, the Tribunal will consider the context of the inaction to determine whether an omission to act in accordance with a contractual obligation to proactively seek assignment opportunities for an employee amounts to a dismissal.
The EAT considered a number of authorities where dismissal had been implied from the employer’s conduct (Kirklees Metropolitan Council v Radecki  ICR 1244 CA; Hogg v Dover College, supra; Kelly v Riveroak Associates Ltd UKEAT/0290/05/DM) and noted that in every case, the conduct from which dismissal was to be implied was known or communicated to the employee.
The appellant had argued before the EAT that the meaning of “termination” in s.95(1)(a) ERA 1996 should be interpreted in such a way that provides for the protection and safeguarding of vulnerable employees’ rights. In any standard employment context, such an omission to provide the Claimant with work opportunities would have been sufficient communication of an intention to dismiss. The fact that the Claimant’s employment was with an agency should not introduce a lower standard.
The EAT addressed this argument by saying:
“We are alive to what is very often an unequal relationship between employer and employee (particularly in an agency context), and we do not lose sight of the reminder given by the Supreme Court as to the potential vulnerability of employees, as set out in Barratt. While we note that specific protections are afforded to agency workers through, for example, the AWR 2010, we can accept that our approach to unfair dismissal protection should be informed by Lord Hope’s characterisation of that protection as ‘part of a charter of protecting employees’ rights’ (see paragraph 37 of Barratt).” [para. 36]
However, turning to the instant case, the EAT held that:
“the circumstances of the Claimant’s employment were not irrelevant to the determination that the ET had to make. Agency workers may well experience gaps between assignments that will not fit the standard employment model; context is everything. The Claimant’s own response – the failure to treat the Respondent’s conduct as a constructive dismissal – was a relevant consideration in this regard, as was the absence of any finding on the part of the ET to the effect that the Respondent itself had considered its contract with the Claimant had come to an end.” [para. 42]
It is clear, therefore, that inaction may communicate different intentions vis-à-vis dismissal in agency and non-agency employment contexts, and that the response of a Claimant and Respondent to inaction is relevant to whether a dismissal has taken place.
Cloisters has significant expertise in advising employers and employees on all aspects of employment law, including statutory employment rights such as unfair dismissal and the protection for Agency Workers. Please contact our clerks.