Winchester And Eastleigh Healthcare NHS Trust v Walker

Continuity of employment for calculating an unfair-dismissal basic award is a statutory construct. General service within the NHS does not, by itself, count as continuous employment with a later NHS employer. Continuity between different health-service employers arises only where the statutory conditions in Employment Rights Act 1996, section 218, or the applicable TUPE provisions are satisfied. Contractual recognition of earlier service for benefits such as leave, sickness or maternity purposes cannot add earlier years to statutory continuous service. The basic award must therefore be calculated by reference to the service which legally counts under section 119.

The Claimant succeeded before the Employment Tribunal in a claim for constructive unfair dismissal and was awarded compensation, including a basic award calculated on 26 years of NHS service. The Respondent Trust accepted that it had employed her only from October 2006, although she had worked for other NHS bodies since 1983.

The Trust appealed the calculation of the basic award. It argued that the Employment Tribunal had failed to apply section 218 of the Employment Rights Act 1996, and that the contractual documents established a 2006 commencement date for statutory purposes. The central issue was whether earlier NHS employment counted as continuous employment with the Respondent.

1. Appeal allowed. The Employment Tribunal had wrongly calculated the basic award by treating the Claimant’s general NHS service as continuous service with the Respondent. The substituted basic award was £1,050, with an uplift of £105.
2. A basic award is calculated in the rigid statutory manner prescribed by section 119 of the Employment Rights Act 1996. It must not be calculated by applying the discretionary or equitable approach relevant to a compensatory award.
3. The new statutory point was properly entertained. The dispute about the Claimant’s employment dates had been live before the Employment Tribunal, and, in any event, the issue was a hard-edged question of statutory construction suitable for determination on appeal.
4. There were only two possible routes by which earlier NHS employment could count: TUPE or section 218. TUPE did not apply. Section 218(8) and (9) concern specified relevant employment involving professional training and successive employment by different health-service employers. A nurse employed since 1983 did not fall within the specified categories identified in the applicable order and therefore failed at the first stage.
5. The contractual documents distinguished between statutory continuous employment with the Respondent, beginning in 2006, and earlier NHS service recognised for particular benefits. Parties cannot contractually inject earlier service into the statutory concept of continuous employment. The documents were clear and there was no evidence to displace them.

• Employment Appeal Tribunal: allowed the Respondent’s appeal from the Employment Tribunal’s judgment and substituted a basic award of £1,050, plus a £105 uplift.