The claimant was employed at a pub until that no longer existed but he was employed by an associated employer soon after his employment contract ended with the first employer. However, there was a week in between the two posts where there was no employment, which, the Employment Judge ruled, meant that he did not have one year’s continuous service and therefore the claimant’s claim of unfair dismissal could not be heard. The Employment Judge ruled that there was no contract of employment during this week but failed to cite s212(3) of the ERA which says that, if the employee is absent from work in circumstances such that, by arrangement or custom, he is regarded as continuing in the employment of his employer for any purpose, then that period counts in computing the employee’s period of employment.

The EAT said that s212(3) should have caught the attention of the EJ and so remitted the case back to her to determine whether, guided by Ford v Warwickshire County Council, continuity could be afforded to the claimant by virtue of that section.

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Appeal No. UKEAT/0603/10/CEA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 2 March 2011

Before

HIS HONOUR JUDGE McMULLEN QC

(SITTING ALONE)

MR G HOLT (APPELLANT)

EB SECURITY SERVICES (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
Written Submissions

For the Respondent
MR CRAIG BENNISON (Representative)

JURISDICTIONAL POINTS – Continuity of employment

The Employment Judge correctly analysed the circumstances leading to the termination of the Claimant's first contract and the start of the second with an associated employer and found a gap of one week so destroying continuity under Employment Rights Act 1996 s 212(1). But there was no consideration of s 212(3) viz whether the gap was pursuant to an arrangement. Appeal allowed. Limited remission to the same Employment Judge.

1. This case is about the requirement for one year's continuous service for the purposes of raising an unfair dismissal claim. I will refer to the parties as "the Claimant" and "the Respondent".

1. The Claimant represented himself at the Employment Tribunal, and is unable to attend today due to family illness. He has, however, in advance, been sedulous in his preparation of a skeleton argument and authorities, and has today indeed been praised for his work by Mr Bennison who appears on behalf of the Respondent.

1. It is an appeal by the Claimant against a Judgment of Employment Judge Tucker, sitting alone, at a pre-hearing review at Birmingham, where the Claimant represented himself and the Respondent was represented by a different consultant. Judgment was sent to the parties on 21 September 2010.

1. The finding of fact by the Judge was that there was one week's gap in his continuous service, and so that broke continuity, and he did not clock up one year's service under section 111 of the Employment Rights Act for the purposes of making a claim of unfair dismissal.

1. The Claimant appealed. The Respondent contended the Employment Tribunal had made the correct decision on the facts. The central issue therefore was to determine whether he had continuity.

1. The issue came before His Honour Judge Peter Clark on the sift and an order was made, sending this to a full hearing and so it has reasonable prospects of success.

1. The relevant provisions of the legislation are not in doubt. I summarised them in my Judgment in [Hussain v Acorn ]()UKEAT0199/10/SM, and in Da Silva v Composite Moulding and Design Ltd [2008] All ER (D) 157, UKEAT0241/08.

1. The Employment Judge correctly recognised that employment by two employers may be bolted together, provided they are associated employers. A week in which there is no contract of employment breaks continuity. Where insufficient notice is given, the period required to be given by the Employment Rights Act 1996 is substituted. That is a combination of sections 86, 97, 210, 212, 219 and 231 of the Act.

1. The problem in the case was identified as being whether or not during the whole or part of a week, there was in place a contract of employment, so that there would be continuity. The Judge expressly says that, and cites section 212(1) of the Act. However, she does not cite section 212(3), which says as follows:

"... any week during the whole or part of which an employee is –

(c) absent from work in circumstances such that, by arrangement or custom, he is regarded as continuing in the employment of his employer for any purpose,

counts in computing the employee's period of employment."

1. Mr Bennison acknowledges that the primary findings of fact made by the Judge focus entirely upon whether or not there was in place a contract. The chronology is that the Claimant was employed by Prosec at a pub, the St Vincent Arms, until that no longer existed as a business, and he was dismissed on 28 February 2009 following a letter sent to him on 24 February 2009. That was short notice, and by the operation of the statute, he was entitled to regard himself as employed until 3 March 2009. Again, by the operation of statute, that is a week which counts, for in part of it he was engaged for any purpose, and that stretches to 8 March 2009.

1. However, the next week there was no employment, but the Claimant was employed on 16 March 2009 by an associated employer, which is the present Respondent, EB, in a different position in a different location, and that offer was made to him on 6 March 2009.

1. The case proceeded on the basis that, for various reasons, the Claimant had been employed during the missing week. He said that the offer itself constituted employment. He is wrong about that; it is a contract, but it is not a contract of employment. It is an offer of work to begin on 16 March.

1. A form was filled in by the employer for the purposes of establishing the Claimant's entitlement to work as a security guard, but the Judge found that that was not sufficient to constitute an employment relationship, nor was the one-off driving of the Respondent's car, for which special dispensation was required from its insurer.

1. Finally, the Judge disposed of an argument that the Claimant at one stage was raising, which is that he was taking holiday to which he was entitled.

1. All of those represent findings of fact by the Judge, which the Claimant in his written submission has not persuaded me to overturn. It was within the scope of her fact finding. However, what she does not do is to consider the position under section 212(3). Nor, as Mr Bennison fairly concedes, could one hew out of these reasons any reflection on it.

1. Given that the Claimant represented himself, it seems to me that this section ought to have caught the attention of the Judge. While she was already engaged in section 212(1), it is not difficult to look down to 212(3), and an argument should have been addressed as to whether, looking back from the end of the second contract, there was a temporary cessation of work by an arrangement made with the employer. The authority on this is Ford v Warwickshire County Council [1983] IRLR 126 HL.

1. Mr Bennison has responded pragmatically and helpfully to my suggestion that further findings should be made upon this, and so I will allow the appeal and direct its remission to the same Employment Judge, unless that is impracticable, for her to determine whether continuity is afforded to the Claimant by virtue of section 212(3).

1. The Claimant has sought to raise a number of other arguments about there being a contract in place, illustrated by the fact that he stayed in the pub and performed various functions for various people, but his opportunity to put that forward either was taken or it is not open to him to open it up again.

1. So there will simply be remission of the one question as to whether, guided by Ford v Warwickshire County Council, and looking from the vantage point of the cessation of the second contract, there was an arrangement such as would afford continuity of employment to the Claimant. That matter can be determined at a further hearing by the Judge, or if the parties agree, can be done on paper. I will leave that to the Judge.