Lipinski v Ebbsfleet Autospray Centre Ltd

Continuity of employment is preserved under the Employment Protection (Continuity of Employment) Regulations 1996 where a dismissed employee presents a relevant complaint of dismissal and is reinstated or re-engaged in consequence of that complaint. A complaint of unfair dismissal presented to an Employment Tribunal is, on its ordinary meaning, a relevant complaint of dismissal for this purpose. That conclusion does not depend on the repealed extended definition formerly contained in section 219 of the Employment Rights Act 1996.

Intervening employment with another employer does not itself prevent preservation of continuity. The necessary causal connection between the unfair-dismissal complaint and the re-engagement remains a question of fact.

The claimant had been dismissed by the respondent in March 2010, presented an Employment Tribunal claim including unfair dismissal, and later returned to work for the respondent after the claim was settled. He was dismissed again in May 2011.

The Employment Tribunal held that there had been a break in employment between March and July 2010. It therefore found that the claimant lacked the qualifying period to bring an unfair-dismissal claim. On appeal, the claimant contended that the Employment Protection (Continuity of Employment) Regulations 1996 preserved continuity. The central issue was whether his re-engagement followed from the presentation of a relevant complaint of dismissal.

1. Appeal allowed and remitted. The Employment Tribunal erred by failing to consider the effect of the Employment Protection (Continuity of Employment) Regulations 1996 on continuity of employment.

2. Regulation 3(2) requires three matters: dismissal by the employer; presentation of a relevant complaint of dismissal; and reinstatement or re-engagement in consequence of that complaint. If each is established, continuity is preserved and the intervening period counts towards continuous employment.

3. A complaint of unfair dismissal to an Employment Tribunal is plainly a complaint of dismissal. In the context of the Regulations, it is a relevant complaint where it concerns the dismissal subsequently reversed by reinstatement or re-engagement. This ordinary meaning did not require reliance on the repealed definition in section 219(3) of the Employment Rights Act 1996. The Tribunal did not decide whether dismissal-related discrimination complaints remained within the expression after that repeal.

4. Employment with another employer during the intervening period does not negate Regulation 3. The Regulations contain no such exclusion. They do not assist, however, where there was no dismissal by the original employer or where the later engagement was not caused by the complaint.

5. The documentation established dismissal and presentation of an unfair-dismissal complaint. It did not establish with sufficient certainty whether the respondent re-engaged the claimant because of that complaint. That factual issue was remitted to the same Employment Tribunal, unless impracticable.

• Employment Appeal Tribunal: allowed the claimant's appeal and remitted the causation issue under Regulation 3(2) of the Employment Protection (Continuity of Employment) Regulations 1996.
• Employment Tribunal: held that the claimant had not proved one year of continuous employment ending with the May 2011 dismissal, and dismissed his unfair-dismissal claim.