Dismissal must be clear and unequivocal

In most cases the termination of employment is clear and unambiguous. But when a dispute arises and a case is taken to the employment tribunal, the tribunal will require evidence  that the employer dismissed.

In a recent case, Miss K was an agency worker who had been working on an assignment arranged via the agency. When the assignment ended, the agency failed to take any steps to find further work for Miss K and wrongly assumed that she was not interested in further work.

Miss K made no attempt to contact the agency, but as she was not given further work she made a claim of unfair dismissal. The Employment Appeal Tribunal felt that in the absence of communication of dismissal by the agency and in the absence of resignation by Miss K, there was no dismissal and dismissal could not be implied by this lack of action. In this case, the tribunal said, the employment relationship was still continuing and therefore she could not bring her claim.

Although Miss K’s claim failed, employers must be cautious not to assume that the employment relationship has ended because, at the very least, an employee is still accruing holiday pay and is entitled to take that holiday pay upon termination.

In another case, an employee who received a dismissal letter but put it on the mantelpiece for two or three days before opening it was deemed not to have been notified of the dismissal until they had actually opened and read the letter. This illustrates that employers should not just assume that because they have sent a written communication dismissal is effective.

A clear way of the employer terminating the employment is to verbally tell the employee that they are dismissed, make a note of that conversation, and then back that up in writing. If there is a dispute about whether dismissal was communicated or not, the employer can rely on the note of their conversation and use this as evidence.  So it should be remembered that if an employee is  dismissed, the letter should make the dismissal very clear and should state the last day of employment and whether or not there will be a period of notice.