EAT Unfair Dismissal: Dismissal/Ambiguous Resignation – AGENCY WORKERS
PRACTICE AND PROCEDURE – Time for appealing
The Claimant was an agency worker, found to be employed by the agency. After an assignment to the Second Respondent (‘R2’) which had lasted several years came to an end, and a van and fuel card handed back by the Claimant to the First Respondent (‘R1’), she did no further work for R1 or R2, though R2 (the agency) told her it would try to arrange some if she wanted it. She indicated that she was not interested, and R2 lost contact with her until a month later she complained she had been unfairly dismissed by R1 and by R2. R1 told her that it was not her employer but that R2 was. After a further month, R2 wrote to the Claimant, enclosing her P45 and saying that if she wished it would try to arrange further work for her, but if she did not or did not respond within two weeks, she would be treated as wishing to terminate her employment. The Judge held this letter amounted to a dismissal, but did not apply the objective reading of the letter, nor explain why in context this amounted to a dismissal.
In a further hearing, the Employment Tribunal held that it was just and equitable to extend time for a claim under the Agency Workers Regulations, but in exercising its discretion said it was relevant to consider when the Claimant first knew of the acts which she complained of as breaches of those Regulations. However, it did not answer that question at all, but in purported discussion of it addressed the wholly different question of why the Claimant had been late in submitting her claim. The approach to exercises of the discretion was thus flawed, and the decision needed to be taken afresh.
The questions whether the Claimant resigned or was dismissed and if so when, and whether her claim was within the normal time limit, as well as the question whether in all the circumstances it would be just and equitable to extend time for her claim in respect of the Agency Workers Regulations were remitted to a fresh Tribunal. It would be open to that Employment Tribunal to consider whether the Claimant (if she wished to do so) could advance a claim of constructive dismissal.
Langstaff P J
[2015] UKEAT 0024 – 14 – 1903
Bailii
England and Wales
Employment
Updated: 29 December 2021; Ref: scu.545908
