In the case of Sandle v Adecco UKEAT/0028/16/JOJ the Employment Appeal Tribunal (“EAT”) held that the Claimant, Ms Sandle, had not been dismissed from her employment as her dismissal had never been directly communicated to her.
Ms Sandle, a lawyer, was employed by Adecco UK Ltd, a recruitment agency. She was assigned to work with one of its most important clients, BASF plc, in November 2011 as a commercial lawyer. Ms Sandle enjoyed her role at BASF and, during the course of her assignment, had little communication with Adecco and kept her contact there, Mr Orr, at a distance.
In the course of 2013 BASF decided to terminate Ms Sandle’s assignment and gave her notice of termination on 30 November 2013. She worked her notice period with BASF but, during this, did not attempt to make any attempt to contact Adecco; equally, Mr Orr only made one attempt to contact her (leaving a voicemail on her mobile phone). Mr Orr did not proactively attempt to source employment for Ms Sandle and did not enquire with any of his colleagues as to whether there were any suitable opportunities for her.
The Claimant’s assignment with BASF came to an end on 30 November 2013 with neither Ms Orr nor Ms Sandle having made any attempt to contact each other. On 12 February 2014 Adecco’s payroll department generated a P45 for its own records – however, a copy of this was not sent to Ms Sandle.
Ms Sandle brought a claim for unfair dismissal against Adecco and BASF. Adecco accepted that Ms Sandle was its employee but denied having dismissed her.
The Employment Tribunal held that Ms Sandle’s claim for unfair dismissal could not be upheld as her dismissal had not been communicated to her; she had simply assumed that she had been dismissed. It is a crucial ingredient of an unfair dismissal claim that a dismissal must be communicated to the employee for it to be effective.
Ms Sandle appealed this decision to the Employment Appeal Tribunal, arguing that a dismissal canbe implied by conduct (Gisda Cyf v Barratt) and that an interpretation of s95(1)(a) Employment Rights Act 1996 did not require communication of dismissal.
The Employment Appeal Tribunal dismissed the appeal, holding that Ms Sandle had the burden of showing that her dismissal had been communicated to her and that she had simply not ‘hurdled’ this burden; dismissal could be implied by conduct but that conduct has to be something of which the employee is aware.
Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case may seem a little harsh on its face (as one could argue, as Ms Sandle did, that the almost-complete failure to contact her constituted conduct which implied that Adecco no longer wished to dimiss her) but does seem to follow the line of existing precedent that states that an employee must be aware of their dismissal in order for it to be communicated to them.”
The transcript of Sandle v Adecco UK Limited can be found here