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 (alleging that the employer's inactivity in finding her assignments amounted to a breach of contract) 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. Therefore, the employment relationship was still continuing when the Claimant lodged her claim.  The Claimant appealed to the EAT.

The EAT accepted that a breach could have been 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.  However, the burden of proof remained on the Claimant that the Respondent's behaviour was so bad that it would allow her to terminate the contract and that she had done so (in order to permit a claim of constructive dismissal to be lodged) or to show that the employer had actually and unequivocally terminated the contract.  She managed to show neither and the appeal was dismissed.

The EAT concluded:

"The Claimant here relies on the Respondent’s omission - its omission to act in accordance with its contractual obligation to proactively seek assignment opportunities for the Claimant, as the ET found.  The Claimant says that, in any standard employment context, this failure to provide her with the work that would thus have resulted would have been sufficient to amount to the communication of a dismissal; just because the employment was with an agency should not introduce any lesser standard.  The difficulty with that point, however is that the circumstances of the Claimant’s employment were not irrelevant to the determination that the ET had to make.  Agency workers may well experience gaps between assignments that will not fit the standard direct employment model; context is everything.  The Claimant’s own response - the failure to treat the Respondent’s conduct as a constructive dismissal - was a relevant consideration in this regard, as was the absence of any finding on the part of the ET to the effect that the Respondent itself considered its contract with the Claimant had come to an end.  It might have completed a P45 for payroll purposes, but it did not send that on to the Claimant...  allowing that an omission to perform a particular act - to pay an employee or proactively seek out work for them to do - does not mean the burden of proof has shifted to the employer when determining whether there has been a dismissal for the purposes of section 95(1)(a) [of the Employment Rights Act 1996].  The ET could not see that the Claimant had demonstrated that anything had been done by the Respondent to communicate it had dismissed her, that it intended to treat its contract with her as at an end; nothing had been communicated to her, the relationship remained in stasis.  The Claimant had not treated herself as constructively dismissed, and nothing had been communicated to her by the Respondent that the ET concluded was a dismissal."
http://www.bailii.org/uk/cases/UKEAT/2016/0028_16_2706.html