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What is a dismissal?
[ch 10: pages 341-343]The first question in any unfair dismissal claim is often whether there has been a dismissal at all. There will be a dismissal where:
• the employer ends the employment contract, with or without notice;
• the employer does not renew a fixed-term contract;
• the employee resigns in response to a fundamental (in other words, very serious) breach by the employer of the employment contract (known as constructive dismissal);
• the employee resigns in response to an unambiguous ultimatum: “resign or you will be sacked!” ;
• the employee is made redundant;
• the employee is not allowed to return to work after taking maternity, adoption, paternity or shared parental leave;
• a new employer after a business transfer or a change of service provider covered by TUPE refuses to take on the transferring workforce (see Chapter 12); or
• the employee resigns because of a serious detrimental change to their working conditions resulting from a business transfer or service provision change covered by TUPE (see Chapter 12).
The law does not allow employees to give up their right to claim unfair dismissal (or any other statutory employment rights) except in very tightly controlled circumstances (see page 509: Settling a claim). This is in recognition of the inequality of the employment relationship and the risk that employees may feel forced to give up their rights to keep their job. For example, employees are not allowed to agree in advance that particular events, if they happen, will end the contract automatically, so that there will be no “dismissal”:
Mrs Igbo asked for extended holiday to visit her family in Nigeria. Her employer agreed, provided she accepted that her employment would end automatically if she failed to return by the agreed day. When she failed to return, the Court of Appeal refused to rule that the contract had terminated automatically, finding instead that there had been a dismissal. Any other conclusion would have allowed the parties’ arrangement to circumvent the tribunal’s jurisdiction to decide whether a dismissal was fair or unfair.
Igbo v Johnson Matthey Chemicals Ltd [1986] IRLR 215
For a dismissal to be effective, it must have been communicated to the employee, whether by words or actions, as this new case shows:
Ms Sandle, an employed agency worker for employment business Adecco, worked as a lawyer for Adecco client BASF. She hoped for a permanent job with BASF. She had little contact with her Adecco manager and no contact with anyone else at the agency.
BASF decided to end the assignment and it notified Adecco and Sandle on the same day. Adecco did not contact Sandle (except for one voicemail message left by her manager) and made no effort to find her other placements. Ten weeks after Sandle left BASF, Adecco generated a P45 for internal payroll purposes, recording a “termination date”, but it did not send this to Sandle who first saw it during her tribunal claim.
Sandle issued an unfair dismissal claim against Adecco, but the tribunal ruled that she had not been dismissed, with the result that she was still an Adecco employee when she issued her claim. The EAT agreed. The burden of proving that she had been dismissed lay with Sandle. It is a fundamental principle of employment law that a dismissal must be “communicated” to the employee by the employer before it can take effect, said the EAT. Sometimes a dismissal can be implied by the employer’s behaviour but a mere failure to make contact with an employee, as in this case, is not enough to imply a dismissal.
Sandle v Adecco UK Limited [2016] UKEAT/0028/16/JOJ
This important case highlights again how unfair dismissal law, which assumes a traditional standard employment relationship between two parties, has failed to keep up with the different ways of working in the modern economy.