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When is continuity of employment preserved?

Posted on 6th September 2013
Case law

Continuity of employment may be preserved when an employee who has been dismissed presents a claim to the employment tribunal and is later reinstated or reengaged as a consequence.

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Adrian Green Adrian
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being employed by another employer between dismissal and reengagement is not a bar to continuity of employment being preserved

Lipinski v Ebbsfleet Autospray Centre Limited UKEAT/0288/12

Background

In this case the Employment Appeal Tribunal (‘EAT’) had to decide whether the Employment Protection (Continuity of Employment) Regulations 1996 applied which resulted in an employee’s continuity of employment being preserved.  As part of its deliberations, the EAT had to consider if working for another employer meant continuity of employment stops.

The facts

Mr Lipinski worked for Ebbsfleet Autospray Centre Limited (‘Ebbsfleet’) from 2008.  He was dismissed in March 2010 and brought a claim of unfair dismissal.  In July 2010 Mr Lipinski settled his claim and recommenced his employment with Ebbsfleet.  Mr Lipinski was then made redundant on 20 May 2011. 

Mr Lipinski brought a claim of unfair dismissal following his redundancy. 

Ebbsfleet argued the break in employment in 2010 had broken Mr Lipinski’s continuity of employment.  Consequently, Ebbsfleet argued that he had not been continuously employed for at least one year and, therefore, he did not have sufficient continuity of employment to bring a claim of unfair dismissal. 

Mr Lipinski argued that he did have sufficient continuity of employment because it had been preserved on the basis that he had been reinstated or reengaged as a consequence of his original tribunal claim.

The decision

The EAT held that continuity of employment will be preserved if the employee can establish three elements:

1. the employee was dismissed by the employer

2. the employee presented a relevant claim to the employment tribunal; and

3. as a consequence of presenting the claim the employee was reinstated or reengaged.

The EAT found that Mr Lipinski had been dismissed by his employer in March 2010.  It also found that his claim of unfair dismissal was a relevant claim to the employment tribunal.  It then remitted the case to the employment tribunal to decide whether or not Mr Lipinski was reinstated or reengaged in consequence of having brought his claim.  It acknowledged that the evidence in this case strongly pointed to that fact.  However, it was a question of fact which needed to be determined by the employment tribunal. 

The EAT also held that being employed by another employer between dismissal and reengagement is not a bar to employment being preserved.  Thus, if the employee can show the above three elements, his continuity of employment is preserved even if he has worked for another employer in the intervening period.

In practice

This situation is going to be quite rare for most employers.  But it does emphasise the importance of employers investigating any ‘gaps’ in employment when trying to determine the length of service of any employee.  If two periods of employment can be joined together the result may be that the employee has sufficient continuity of service to bring a claim of unfair dismissal.

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