Qualified to claim unfair dismissal (part 1)

11 Oct 2012

Continuity of employment is normally critical to whether a dismissed employee can claim unfair dismissal.

For employees engaged prior to 6 April 2012, the qualifying period is one year.  For employees starting employment on or after 6 April 2012, the qualifying period is two years.

Holt v EB Security (In Liquidation) is a case that may surprise some readers.

Judgment was published on 20 September 2012 and the facts are simple:

The Claimant was employed by Prosec International Limited (Prosec) at a pub from July 2007 until 3 March 2009.  On 16 March 2009, he started working for the Respondent, an associated employer of Prosec.  The Claimant's employment with the Respondent ended ten months later.

The Employment Tribunal Judge held that the gap in the Claimant's employment between 3 March 2009 and 16 March 2009 broke his period of continuous service and, in the Judge's view, the Claimant did not, therefore, have one year's employment and so could not claim unfair dismissal.

At a first appeal to the Employment Appeal Tribunal (EAT), the EAT sent the case back to the Employment Tribunal for the Employment Tribunal Judge to consider Section 212(3) of the Employment Rights Act 1996.

Section 212(3) states that any week when an employee is absent from work on account of a temporary cessation in work, or 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. 

In the Employment Tribunal Judge's second Judgment she found that Section 212 did not help the Claimant and that he did not have one year's continuous employment so could not claim unfair dismissal.  The Judge stated that the Claimant's employment with Prosec ended with the closure of the pub where he worked.  That business then ceased.  The cessation of his work at the pub was not temporary, it was permanent.  His new job, starting on 16 March, was in a different role entirely, albeit with an associated employer.

The Claimant appealed to the EAT again.  The EAT asked itself three questions:

  1. Was there a cessation of the Claimant's work or job?  Answer "Yes".
  2. Was he absent on account of that cessation? Answer "Yes".
  3. Was the cessation temporary?  Answer "Yes" (the gap was just two weeks).

The EAT did not think it mattered that his new job was different from the first one.  The EAT therefore allowed the appeal and held that the Claimant was continuously employed from July 2007 until January 2010 and was therefore qualified to bring a claim of unfair dismissal.

NB: There is no qualifying period for "automatically unfair dismissals".

Our view:

A logical application of the law that means employers need to be careful not to assume that any break in employment breaks continuity.