DOES FAILURE TO FIND WORK FOR AN EMPLOYED AGENCY WORKER CONSTITUTE A DISMISSAL?
The Employment Appeal Tribunal (EAT) has decided that a dismissal cannot be implied by a recruitment company failing to find work for its employed agency worker.
The agency worker concerned, Miss Sandle, was a commercial lawyer who was supplied to work for clients by Adecco, her recruitment company employer. When her assignment with Adecco’s client, BASF Plc, came to an end, Miss Sandle did not make contact with Adecco. Adecco did not attempt to find Miss Sandle another assignment and, having left Miss Sandle one voicemail message, assumed that she did not want any further assignments.
Miss Sandle subsequently claimed that she had been unfairly dismissed by Adecco. The EAT disagreed, deciding that, in order to prove dismissal, the employer’s unequivocal intention to dismiss must be communicated to the employee. An employee must be aware that their employer is dismissing them, whether through the employer’s words or conduct.
The EAT also considered the context of the case and the fact that Miss Sandle was an agency worker. It was acknowledged that agency workers may well experience gaps between assignments which do not signal dismissal.
A useful warning for recruitment companies is that Adecco had breached a contractual obligation to use its best efforts to promote Miss Sandle to its clients to maximise her work opportunities. The EAT found that, had Miss Sandle resigned from her employment in response to that breach, she would have been entitled to claim constructive dismissal.
- Ensure that agency workers do not sit on your books without any communication. Contact agency workers to clarify if they still require your work finding services and, if they do, look for assignments for them.
- If you do not have any assignments for your employed agency workers, you may be entitled to dismiss them due to redundancy. There must be a genuine redundancy situation and a fair procedure should be followed, so take legal advice if you are uncertain.
- Once a decision to dismiss has been made, this should be made clear to the employed agency worker to avoid any ambiguity, as was the case between Miss Sandle and Adecco.