CONTINUITY OF EMPLOYMENT

London Probation Board v Kirkpatrick

EAT: Judge McMullen QC, Mrs J M Matthias and Dr K Mohanty: 10 February 2005

The applicant was dismissed from his employment by his employer. Two months later, on an internal appeal by the applicant, the appeal panel decided that he should be reinstated. One month later the employer decided to reject the decision of the appeal panel, and the applicant was dismissed. He brought a claim for unfair dismissal based on that dismissal, being out of time to bring a claim arising from the initial dismissal. At a preliminary hearing the employment tribunal, rejecting the employer's contention that the applicant did not have the necessary one year's continuous employment to bring the claim because his continuity of employment had been broken by the gap between the initial dismissal and any reinstatement, found that the appeal panel had reinstated the applicant and thereby removed any break in the applicant's service.

The employer appealed, contending, inter alia, that continuity of the applicant's service could not have been preserved under section 212(3)(c) of the Employment Rights Act 1996 by the circumstances of the reinstatement, as any "arrangement" for the purposes of that provision had to be in place prior to the gap in employment.

The Employment Appeal Tribunal held:
Given the employer's contractual provisions for internal appeals, a decision to reinstate was binding as a matter of contract, but, in any event, the question of whether or not the applicant was reinstated was a question of fact for the employment tribunal, who had ample material on which to base its decision. The consequence of the decision to reinstate the applicant as a matter of contract was that he was not regarded as having been dismissed and during the gap his contract continued for certain purposes. Section 212(3)(c) of the Employment Rights Act 1996 did not require an arrangement, whereby an employee was regarded as continuing in the employment for any purpose, to have been made in advance of the gap in service. Alternatively, the applicant was regarded as being in the employer's employment for at least the purposes of the internal appeal pursuant to the established internal discipline and appeal procedures, which constituted an "arrangement" for the purposes of section 212(3)(c) made prior to the gap. Accordingly, the applicant's employment was continuous for the purposes of his unfair dismissal claim.

The appeal was dismissed.

Appearances: Scott Pearman (Coomber Rich, Basingstoke) for the applicant; Damian Brown (Beachcroft Wansbroughs) for the employer.