Dismissal in the world of agency employers and employees

A recent case has shown the tricky line that exists between agency employers and employees when it comes to dismissal, and whether dismissal can be implied by the agency finding no more work for the employee once one assignment ends.

In the case of Sandle v Adecco UK Limited, the claimant was an agency worker employed by the agency and working for one of their clients on a specific project.  When this ended, the agency did not actively seek a new position for her and assumed she was no longer looking for more work through them.  The claimant also made no effort to contact the agency about finding her alternative employment, but brought a claim of unfair dismissal against the agency as she believed, due to their lack of contact, that she had been dismissed.

The Employment Tribunal (ET) found that as there had been no communication between employer and employee regarding a dismissal, there was no termination of the employment contract, and so technically the claimant was still employed by the agency at the time she raised her unfair dismissal claim.  The ET explained that had she resigned, she could have brought a constructive dismissal claim.

The claimant appealed, stating that dismissal had been implied due to the lack of communication and attempt to find her a new position.  The Employment Appeal Tribunal (EAT) dismissed the appeal supporting the Tribunal’s original explanation that a dismissal must be communicated between employer and employee, no matter the actions of either party.   The burden of proof in unfair dismissal cases lies on the employee to demonstrate that they have been dismissed, and as she could not do this, in the eyes of the EAT she had not been dismissed and so could not bring an unfair dismissal claim.

“The same rules apply to agency workers as they do to other employees; a dismissal must be communicated to the employee clearly,” explains Howard Robson, Parnter in the Employment team.  “While it is true that agency workers are subject to different regulations than other employees, the majority remain the same under the Agency Workers Regulations 2010.  It is important that all employers, whether agency or not, follow the correct procedures when it does come to dismissing employees, otherwise they could find themselves on the wrong side of an unfair dismissal claim.”

If you’re looking for advice about employing agency workers, or you run an employment agency yourself, you can contact Howard or the Employment team on 02380 717717 or email howardrobson@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.