Holt v EB Security Ltd (Jurisdictional Points : Continuity of employment)

For the purposes of section 212(3)(b) of the Employment Rights Act 1996, a temporary cessation of work is assessed by asking whether the employee’s job ceased, whether the employee was absent because of that cessation, and whether the cessation was temporary. The inquiry may be made retrospectively from the employee’s subsequent employment with an associated employer.

A permanent end to the employee’s original work does not necessarily prevent the intervening cessation from being temporary. A short gap between associated employments may preserve continuity where it resulted from the cessation of the earlier job.

The claimant sought to bring an ordinary unfair-dismissal complaint. His employment with Prosec International Ltd ended when the public house at which he worked closed on 3 March 2009. He began work with EB Security Ltd, an associated employer, on 16 March 2009 and his employment ended in January 2010.

The Employment Tribunal held that the two-week gap broke continuity. An earlier EAT appeal allowed by HHJ McMullen QC remitted the continuity issue. On remission, the Employment Judge again found insufficient continuous service under section 212(3)(b) of the Employment Rights Act 1996. The claimant appealed again.

The central issue was whether the gap was an absence caused by a temporary cessation of work, so that it counted towards continuous employment.

1. Appeal allowed. The claimant was continuously employed from July 2007 until January 2010. The Employment Tribunal therefore had jurisdiction to determine his unfair-dismissal complaint.

2. The earlier remission, read with HHJ McMullen QC’s reasons, had potentially engaged both section 212(3)(b), concerning a temporary cessation of work, and section 212(3)(c), concerning an arrangement or custom. The Employment Judge was nevertheless right to focus on section 212(3)(b).

3. Applying Bentley Engineering Co Ltd v Crown and Anor [1976] ICR 225, the correct questions were whether there had been a cessation of the employee’s work or job, whether the employee was absent because of it, and whether the cessation was temporary. Each was satisfied. The claimant’s job ended when the public house closed; he was absent from employment between 3 and 16 March 2009 because of that cessation; and, viewed from his subsequent employment with the associated employer, the two-week cessation was temporary.

4. The fact that the claimant did not resume his former role did not make the cessation permanent for this purpose. The approach suggested by the editors of Harvey on Industrial Relations and Employment Law, requiring the later associated employer to resume the former operations, was not accepted.

5. The claimant’s late application to substitute EB Monitoring UK Ltd for the respondent was refused. There was no material showing that EB Security Ltd had been wrongly identified when proceedings began.

• Employment Appeal Tribunal: This appeal was allowed. The Tribunal’s second decision that continuity was broken was displaced.
• Employment Appeal Tribunal: An earlier appeal, UKEAT/0603/10/CEA, was allowed by HHJ McMullen QC and remitted to the same Employment Judge for further consideration of continuity.
• Employment Tribunal: The first decision, promulgated on 10 June 2011, held that the gap between the associated employments broke continuity. On remission, the second decision, promulgated on 3 August 2011, reached the same conclusion.