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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Holt v EB Security Ltd (Jurisdictional Points : Continuity of employment) [2012] UKEAT 0558_11_1307 (13 July 2012) URL: http://www.bailii.org/uk/cases/UKEAT/2012/0558_11_1307.html Cite as: [2012] UKEAT 0558_11_1307, [2012] UKEAT 558_11_1307 |
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EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At the Tribunal
Before
EB SECURITY LTD - IN LIQUIDATION RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
JURISDICTIONAL POINTS – Continuity of employment
Section 212(3)(b) ERA – temporary cessation of employment – Bentley Engineering v Crown [1976] ICR 225 considered and applied. Appeal by Claimant allowed. Continuity preserved.
HIS HONOUR JUDGE PETER CLARK
Introduction
Background
3. Against the first decision the Claimant appealed (UKEAT/0603/10/CEA) (“the first appeal”). The full hearing of that appeal came before HHJ McMullen QC on 2 March 2011. I note from the Judgment given on that day that the Respondent is described as “EB Security Services”. I shall return to the identity of the Respondent later in this Judgment. Judge McMullen allowed the Claimant’s appeal and remitted the case to the same Employment Judge for further consideration. The precise scope of the remission, a point considered by the Court of Appeal in Aparu v Iceland Frozen Foods Ltd (No. 2) [2000] ICR 341, is a little problematic. The EAT order seal dated 3 March 2011 reads, so far as is material:
“The Tribunal orders that the Appeal be allowed and remitted to the same Employment Judge for her to determine whether continuity of employment is afforded to the Claimant under S212(3)(c) of the Employment Rights Act 1996.”
4. Section 212(3) reads, so far as is material:
“(3) […] any week (not within subsection (1)) during the whole or part of which an employee is— […]
(b) absent from work on account of a temporary cessation of work, or
(c) absent from work in circumstances such that, by arrangement or custom, he is regarded as continuing in the employment of his employer for any purpose […]
counts in computing the employee’s period of employment.”
5. In the Judge’s summary he said:
“But there was no consideration [by the Employment Judge] of s 212(3) viz whether the gap was pursuant to an arrangement.”
“While [the Employment Judge] was already engaged in section 212(1), it is not difficult to look down to 212(3), and an argument should have been addressed as to whether, looking back from the end of the second contract, there was a temporary cessation of work by an arrangement made with the employer. The authority on this is Ford v Warwickshire County Council [1983] IRLR 126 HL.”
7. And at paragraph 19 he added, under the heading “Result”:
“So there will simply be remission of the one question as to whether, guided by Ford v Warwickshire Council, and looking from the vantage point of the cessation of the second contract, there was an arrangement such as would afford continuity of employment to the Claimant.”
11. Secondly (paragraph 12), she considered whether the word “work” in section 212(3)(b) refers to any work available for the Claimant to do under the second contract with the same or any associated employer and rejected that construction, having considered the House of Lords decision in Ford and Hussain v Acorn Independent College Ltd [2011] IRLR 463 (EAT, Judge McMullen presiding), both of which cases are referred to by Judge McMullen in the first appeal Judgment together with another case on which he sat, Da Silva v Composite Moulding and Design Ltd [2008] All ER (D) 157; UKEAT/0241/08.
12. Both Ford and Hussain were cases involving teachers whose contracts ended at the end of the summer term and restarted in the autumn term with the same employer. The outcome in both cases was, looking backwards from the end of the final contract, that the holiday breaks amounted to a temporary cessation preserving continuity of employment. I note that Employment Judge Tucker was not referred to, and did not consider, the old case of Bentley Engineering Co Ltd v Crown and Anor [1976] ICR 225 (QBD, Phillips J), decided during the interregnum between the National Industrial Relations Court and the Employment Appeal Tribunal. In that case the two Claimants, Messrs Crown and Miller, were employed by company A until both were made redundant in 1963. Two years and 21 months later respectively, the Claimants obtained fresh employment with the Respondent; A and the Respondent were associated employers. Phillips J held on appeal that the Industrial Tribunal was entitled to find that the Claimants could rely on the predecessor to section 212(3)(b) to preserve continuity between the two employments.
(1) There was a cessation of the Claimant’s work/job; it came to an end when the public house closed.
(2) Was he absent on account of that cessation? Answer: yes; he was not employed under a contract of employment between 3 and 16 March.
(3) Was the cessation temporary? Yes, it was, looking back from the vantage point of his employment with the Respondent associated employer; the gap was two weeks.
Conclusion
Addendum