Continuous employment

To bring a claim of unfair dismissal, employees have to have worked continuously for a specified period of time with the employer. In Holt v EB Security Ltd the Employment Appeal Tribunal (EAT) said that an employee could have continuity of employment even if they had a gap between leaving one job and starting another with an associated employer and the work was completely different.

Basic facts

Mr Holt started work in a pub for Prosec International Ltd in July 2007. He lost his job when the pub closed on 3 March 2009 but found work again with EB Security (a company associated with Prosec) 14 days later, on 16 March.

He was then dismissed on 11 January 2010 and claimed unfair dismissal which meant he had to satisfy the qualifying period of one year (now two). Although he had only worked for ten months for EB Security, Mr Holt argued that he had the necessary qualifying period as he had worked for an associated employer for almost two years prior to that.

Tribunal decisions

The employment tribunal, however, disagreed saying that although Prosec and EB Security were associated employers, the gap in employment between 3 and 16 March 2009 was fatal to his argument that he had continuous service from July 2007 until January 2010. “But for that gap he would be able to count the whole of his service with the two associated employers”, it said.

He appealed. The EAT allowed his appeal and remitted the case to the same tribunal to look again at whether he had continuity of employment under section 212(3)(c) of the Employment Rights Act 1996.

The employment judge looked again at the issue, but under section 212(3)(b), and found again that Mr Holt did not have the necessary continuity to bring his unfair dismissal claim. The cessation at the time was not “temporary” - the pub closed permanently and although he found work with an associated employer, it was in a different role entirely. The cessation was therefore permanent. Mr Holt appealed again.

Relevant law

Section 212(3) states that “any week ... 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”.

EAT decision

The EAT upheld his appeal and rejected the argument that unless the subsequent associated employer resumed the operations performed by the first employer, there could not be a temporary cessation of work.

Relying on the decision in Bentley Engineering Co Ltd v Crown and anor, the EAT said it had to answer three questions:

1. Was there a cessation of the employee’s work or job?
2. Was the employee absent on account of that cessation?
3. Was the cessation temporary?

In this case, all the answers were in the affirmative. There was a cessation of his job in that the pub closed; he was absent on account of that cessation as he had no contract covering the period between 3 and 16 March; and “looking back from the vantage point of his employment with the Respondent associated employer, the gap was two weeks” and was therefore temporary.