December 15, 2012

Employment e-Brief – Welton v Deluxe Retail Ltd T/A Madhouse (in administration)

This e-Brief considers a useful decision from the Employment Appeal Tribunal (“EAT”) on continuity of employment.

THE LAW

Continuous employment is governed by statute and is a fundamental concept in determining key statutory rights. One of those rights is the right not to be unfairly dismissed. If an employee does not have sufficient continuous service, they are generally barred from bringing an unfair dismissal claim. A break of one clear week is sufficient to break continuity of service.

THE FACTS

The employer had a working week of Sunday to Saturday. The Claimant commenced employment with the employer on 05 January 2009. The Claimant was employed at the employer’s Sheffield store until it was closed on Tuesday 23 February 2010. Therefore, the week end in that case was Saturday 27 February 2010.

The Claimant was offered employment with the same employer at its Blackpool store on the next week working week following closure, which he accepted. However, he did not commence employment until 08 March 2010.

The Claimant’s employment ended on 11 December 2011 and he brought a claim before the Employment Tribunal.

THE DECISION

The question before the Employment Tribunal was whether his continuity of employment had been preserved. If it had then he would have had the requisite service to bring a claim and if it had not, then he could not proceed with his claim. The Employment Tribunal held that the Claimant did not have continuity of employment and therefore his claim could not proceed.

The EAT reversed that decision. It decided that once the new employment had been accepted, the relationship between the two parties was governed by a contract of employment. The Claimant therefore had continuity of employment. This was so regardless of when the Claimant actually started work.

The EAT also observed in passing that his employment at the Sheffield store had only ended due to a temporary cessation of work. A third argument which had been advanced by the Claimant did not succeed.

THE IMPLICATIONS

Employers will need to carefully consider when employment is offered to a former employee. They will also need to take into account the reasons why the original employment ended.

The decision provided in this e-Brief is fact-specific and it is always recommended that legal advice is sought before any decision is made.

For further information or advice on any of the issues outlined in the e-Brief, please contact any member of the employment team.