Holt v EB Security Services

For continuity of employment, a week without a contract of employment will ordinarily break continuity under Employment Rights Act 1996, section 212(1). However, the tribunal must also consider whether the week falls within section 212(3), because the employee was absent in circumstances where, by arrangement or custom, he was regarded as continuing in employment for a relevant purpose. That question requires consideration of the arrangement in the context of the later employment, guided by Ford v Warwickshire County Council [1983] IRLR 126 HL.

The claimant appealed from a pre-hearing review before Employment Judge Tucker. The tribunal found that his employment with Prosec ended on 28 February 2009, that statutory notice extended the employment for a period, and that a subsequent contract with the associated respondent began on 16 March 2009. It concluded that the intervening week broke continuity and that the claimant lacked the one year’s service required for an unfair dismissal claim under section 111 of the Employment Rights Act 1996.

The central issue before the Employment Appeal Tribunal was whether the tribunal had correctly determined continuity by considering only whether a contract of employment existed during the gap.

1. Appeal allowed and limited remission ordered. The Employment Judge’s factual findings concerning the absence of a contract of employment, the offer of later work, the administrative form, the one-off driving of the respondent’s car and the holiday argument were findings properly open to her and were not overturned.
2. The tribunal correctly considered section 212(1) of the Employment Rights Act 1996. A week without a contract of employment may break continuity. Statutory provisions concerning notice and the computation of employment, including sections 86, 97, 210, 219 and 231, may nevertheless cause part of the relevant period to count.
3. The tribunal failed to consider section 212(3). That provision required the tribunal to determine whether the claimant’s absence occurred in circumstances where, by arrangement or custom, he was regarded as continuing in employment for any purpose.
4. The question had to be considered by looking back from the commencement of the second contract and asking whether there had been a temporary cessation of work pursuant to an arrangement with the employer. The relevant authority was Ford v Warwickshire County Council [1983] IRLR 126 HL.
5. The matter was remitted to the same Employment Judge, unless impracticable, to decide only whether section 212(3) preserved continuity. The issue could be determined at a further hearing or, by agreement, on paper. The claimant could not reopen the other arguments concerning an intervening contract.

• Employment Appeal Tribunal: Appeal from the judgment of Employment Judge Tucker, sent to the parties on 21 September 2010. Appeal allowed and the section 212(3) issue remitted to the same Employment Judge, unless impracticable.
• Employment Tribunal: Found a one-week break in employment and concluded that continuity was broken for the purposes of an unfair dismissal claim.