Professional December 2016/January 2017

REWARD INSIGHT

Dismissal, harassment, early conciliation

Nicola Mullineux, senior employment specialist for Peninsula, reviews decisions in three cases

Sandle v Adecco UK Ltd The Employment Appeal Tribunal (EAT) has considered whether an employee can be dismissed without any communication of the dismissal. The respondent was a recruitment and employment business that supplied temporary workers to clients. The claimant was employed as an agency worker from November 2011 and she was assigned to a client as a commercial lawyer. The claimant enjoyed her assignment and wanted to seek a permanent role there. There was little contact between the claimant and the respondent. In 2013, the company to which the claimant was assigned had concerns over her performance and decided the assignment should be terminated. They informed the respondents of this on 30 October 2013 and gave notice to the claimant that her assignment would end on 30 November. The claimant worked her notice period without making any contact with the respondent. A manager from the recruitment business made one attempt to call the claimant, leaving a voicemail message, but made no further attempts

to contact her. They assumed the claimant would not be interested in any further assignments. A form P45 was generated in February 2014; this recorded the date of termination of employment as 30 November 2013 but was not sent to the claimant. The claimant brought an unfair dismissal claim against the respondent in February 2014. The Employment Tribunal (ET) had to determine whether the claimant had shown she was dismissed, a pre-condition of an unfair dismissal claim. The ET found that the respondent had breached the contractual obligation to use its best efforts to maximise the claimant’s assignment opportunities, but she had not resigned so could not claim constructive dismissal. The ET judged that there had been no direct dismissal of the claimant because there was no evidence to show the respondent had communicated a dismissal. The ET concluded that the claimant had remained an employee of the respondent when she presented her claim; she had not resigned or been dismissed. The EAT considered that the claimant’s case; whether a dismissal can be implied

by the inaction of an employer to find work for the employee was a new point that was particularly important for agencies. The EAT confirmed the ET’s judgment that a dismissal has to be communicated. Communication can, however, be by express words or it can be implied from conduct, such as failing to pay the employee or issuing form P45 to the employee, but it must be conduct which the employee is aware of so it has been communicated. The appeal against the judgment of the ET was dismissed. Hartley v Foreign & Commonwealth Office Services Judgment has been reached as to whether a finding of harassment depends on the perception of the harasser. Under the Equality Act 2010, harassment is unwanted conducted related to a protected characteristic. The claimant was diagnosed with Asperger syndrome in 2009; a disability that affected her communication, understanding and handling of and reaction to stressful situations. The claimant started a six-month probationary period with the respondent on 7 August 2012. She had disclosed her disability and a reasonable adjustment plan was

...a new point that was particularly important for agencies

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| Professional in Payroll, Pensions and Reward | December 2016/January 2017 | Issue 26

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