EAT Unfair Dismissal: Dismissal/Ambiguous Resignation
Unfair dismissal – dismissal – section 95(1)(a) Employment Rights Act 1996
The Claimant was an agency worker employed by the Respondent but working on assignment to another entity. When her assignment came to an end, the Respondent failed to take proactive steps to find other work for the Claimant and made little attempt to contact her, assuming that she was not interested in further agency work. For her part, the Claimant also made no attempt to contact the Respondent. On the Claimant’s subsequent claim of unfair dismissal, the ET found that she could have claimed constructive dismissal but had not done so. It further found that there had been no direct dismissal by the Respondent: it had done nothing to communicate a dismissal to the Claimant; the employment relationship was still continuing when the Claimant lodged her claim. She had not met the burden of proving she was dismissed for the purpose of section 95 Employment Rights Act 1996 and thus could not pursue a claim of unfair dismissal. The Claimant appealed.
Held: Dismissing the appeal.
Accepting that a direct dismissal for the purposes of section 95(1)(a) could be implied from the employer’s conduct and, further, that the circumstances giving rise to the possibility of a constructive dismissal could co-exist with a direct dismissal (Hogg v Dover College [1990] ICR 39 EAT), the employer’s unequivocal intention to dismiss still had to be communicated to the employee. The burden of proof remained on the Claimant. The ET had not erred in asking whether the Claimant had established that the Respondent had communicated an unequivocal intention to treat the contract of employment as at an end – that she was dismissed. And, in the circumstances of this case, had reached a permissible conclusion that she had not.
Eady QC HHJ said: ‘dismissal does have to be communicated. Communication might be by conduct and the conduct in question might be capable of being construed as a direct dismissal or as a repudiatory breach, but it has to be something of which the employee was aware.’
Eady QC HHJ
[2016] UKEAT 0028 – 16 – 2706
Bailii
England and Wales
Cited by:
Cited – Newcastle Upon Tyne Hospitals NHS Foundation Trust v Haywood SC 25-Apr-2018
Notice of dismissal begins when received by worker
The court was asked: ‘If an employee is dismissed on written notice posted to his home address, when does the notice period begin to run? Is it when the letter would have been delivered in the ordinary course of post? Or when it was in fact . .
These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.570380