Can a dismissal be implied?

Posted on Nov 7, 2016

A dismissal must be clearly communicated to an employee and in the case of Sandle v Adecco, it could not be implied that the employment relationship had been terminated.

In this case, the agency employee had been on secondment to a company. When the assignment ended, the agency made no effort to find the employee another role, and she in turn also did not contact them. She argued that their failure to find her further work was an implied dismissal.

The EAT held that, as the employer had failed to communicate the dismissal and there was no resignation by the employee, the employee’s claim had to fail because there was no dismissal; the employment relationship was continuing.

In order for an employer to terminate an employment relationship without facing a claim for unfair dismissal, it is important that the dismissal is fair and communicated with unequivocal intention to the employee.

Although this case is limited to agency staff, the principles can be applied in other circumstances. For example, where you employ seasonal staff, the same situation could come up, so you will need to be clear with the staff when their employment starts and ends. Equally, this can arise in settlement discussions. You might start a protected conversation and offer a settlement agreement that will often work towards a termination date, if negotiations run past that date, you may face arguments over the termination date. The question is: has the employee actually been given notice or dismissed openly? Have they been given notice in writing as required by their contract? If not, then until the agreement is signed, the employment is ongoing as there has been no unequivocal communication of dismissal.