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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Lymbury (t/a John Lymbury & Co) v McCrery [1998] UKEAT 217_98_1802 (18 February 1998)
URL: http://www.bailii.org/uk/cases/UKEAT/1998/217_98_1802.html
Cite as: [1998] UKEAT 217_98_1802
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| At the Tribunal | |
Before
HIS HONOUR JUDGE PETER CLARK
MRS M T PROSSER
MR J C SHRIGLEY
MR J LYMBURY T/A JOHN LYMBURY & CO APPELLANT
MRS J MCCRERY RESPONDENT
| APPELLANT | |
| RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
| For the Appellant | IN PERSON |
| For the Respondent | NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE RESPONDENT |
JUDGE PETER CLARK: The facts here are that Mr Lymbury is a Solicitor practising under the style John Lymbury & Co from offices in Sherwood.
By a training contract in writing, dated 1 October 1993 Mr Lymbury engaged Mrs McCrery as a trainee. That contract lasted for two years at the end of which she was admitted to the roll. Thereafter she remained with the firm as an Assistant Solicitor until her dismissal on 18 June 1997.
On 8 August 1997 she presented a complaint of unfair dismissal to the Industrial Tribunal. Mr Lymbury took a preliminary point that she had not completed two years qualifying service.
That issue came before a Chairman, Mr J.C. Blood, sitting alone at Nottingham on 22 December 1997. For reasons promulgated on 12 January 1998 the Chairman held that Mrs McCrery had been continuously employed since 1 October 1993 and that accordingly, the Tribunal had jurisdiction to entertain her complaint of unfair dismissal. Against that decision Mr Lymbury now appeals.
He submits that the Solicitors Training Contract is in some way special, so that once it comes to an end the parties enter into a new contract and the service under the Training Contract cannot count towards continuity for the purposes of the Employment Rights Act 1996. We think that submission is misconceived.
The purpose of a Training Contract is two-fold; to provide training to the would be Solicitor and to create a fixed term contract of employment. If the contract expires without renewal, the trainee is dismissed under Section 95(1)(b) of the Act and the trainee's right to claim unfair dismissal protection or a redundancy payment may be excluded, in the light of Clause 10 of the standard form of contract, by virtue of Section 197 of the Act. We are not required to decide that point in this case.
However, where as here the trainee is offered fresh terms as an Assistant Solicitor, so that her employment continues without interruption, in our judgment the presumption of continuity to be found in Section 210(5) of the Act is not rebutted. The employment is continuous as the Chairman found.
In these circumstances, at this preliminary hearing, we can see no arguable point of law to go to a full appeal hearing and accordingly the appeal must be dismissed.