Appeal No. UKEAT/0288/12/JOJ
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
6 June 2013
Before
THE
HONOURABLE MRS JUSTICE SLADE DBE
MR T HAYWOOD
PROFESSOR K C MOHANTY JP
MR
W LIPINSKI APPELLANT
EBBSFLEET AUTOSPRAY
CENTRE LTD RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
UNFAIR DISMISSAL – Exclusions including worker/jurisdiction
The issue to be determined was whether the Employment Tribunal
erred in failing to hold that the Claimant’s continuity of employment was
preserved by operation of the Employment Protection (Continuity of
Employment) Regulations 1996 between the date of his dismissal and his
reinstatement. It was held that for such continuity to be preserved three
elements must be present: (1) the employee was dismissed by the Respondent; (2)
he has presented a relevant complaint of dismissal; and (3) that in consequence
of presenting such a relevant complaint he is reinstated or re-engaged. The
presentation of a complaint of unfair dismissal to an Employment Tribunal which
is related to the reinstatement or re-engagement is a “relevant complaint of
dismissal” within the meaning of Regulation 219(2)(b). This is the natural
meaning of the words and does not depend on the extended definition of
“relevant complaint of dismissal” in the now repealed ERA section 219(3).
It was not necessary to determine whether complaints of discrimination by
dismissal which were previously included in the now repealed definition are
still to be regarded as “a relevant complaint of dismissal”. Matter remitted
to the ET to determine whether the Claimant was reinstated in consequence of
bringing a complaint of unfair dismissal.
THE HONOURABLE MRS
JUSTICE SLADE DBE
Introduction
1.
Mr Lipinski, the Claimant, appeals from the Judgment of an
Employment Tribunal sent to the parties on 20 March 2012 that he
failed to establish that he was continuously employed by the Respondent,
Ebbsfleet Autospray Centre Ltd, for at least one year ending with his dismissal
on 20 May 2011 and accordingly he did not have the right to present a
complaint of unfair dismissal to an Employment Tribunal. References below to
paragraph numbers are to those in the Judgment of the Employment Tribunal
unless otherwise indicated. The appeal turns on whether the Employment
Tribunal erred in holding that there was a break in the continuity of the
Claimant’s employment between 26 March 2010 and 19 July 2010. Following
a preliminary hearing, HHJ McMullen QC permitted the appeal to
proceed on two grounds. Ms Cunningham, in her helpful skeleton argument and today
before us, has confirmed that the appeal is proceeding on one ground only, and
that is that the Tribunal had failed to consider whether Regulation 3(2)
of the Employment Protection (Continuity of Employment)
Regulations 1996 (’the Regulations’) had the effect of preserving the
Claimant’s continuity of employment.
The facts
2.
The Employment Tribunal made the following findings of fact.
Mr Lipinski first began work for the company on 3 October 2006.
He was dismissed for the first time on 11 July 2008. He was hired by the
company again on 3 December 2008. His employment ceased when he was
dismissed on 25 March 2010. Mr Lipinski then presented a claim
to the Tribunal against the company. Mr Lipinski began working for
Nationwide Crash Centre in April 2010. He continued working for them
until early July in 2010. Before the date on which Mr Lipinski’s claim
against the Respondent was due to be heard, the case was settled by him. The
signed settlement agreement is in the bundle dated 23 July 2010 and reads:
“We have re‑employed Mr Lipinski on a permanent basis. We
are both in agreement of the following payment:
1 Holiday pay;
2 Notice of pay [sic];
3 Arrears of pay, other payments.”
3.
On the same date Mr Lipinski wrote to the Tribunal stating that he
wished to withdraw his claim as, “I have reached a settlement outside of
court”. Mr Lipinski’s employment recommenced on 19 July 2010.
On 18 January 2011 Mr Lipinski and Mr Halaith (on behalf of
the company) signed a written statement of main terms and conditions of
employment. This stated that his employment commenced on
19 June 2010. Mr Lipinski brought to the attention of the company
that this date should read 19 July 2010, but it was not amended. On
20 May 2011 Mr Lipinski was dismissed by the company. The
letter stated:
“It is with regret that we must terminate your contract as of
immediate effect. We can confirm that the reason is reduction in the type of
work that you specialise in.”
The letter went on to state that he was being paid one week’s
notice and any outstanding holiday entitlement.
The conclusion of the Employment Tribunal on the claim for unfair
dismissal
4.
The Tribunal looked at the question of whether Mr Lipinski had been
continuously employed for one year. They held:
“20. […] We determined that he was not employed by the company
during the period 25 March 2010 to 19 July 2010. In coming
to that conclusion, we took into account Mr Lipinski’s evidence, and also
the documents before us. Those documents included the agreement signed by the
parties on 23 July 2010 and the statement of terms and conditions signed
by the parties on 18 January 2011.
21. The onus is on Mr Lipinski to establish continuous
employment of one year or more. He failed to do so. It follows that the
Tribunal is unable to hear his claim since he did not have the right not to be
unfairly dismissed.
22. The claim for unfair dismissal therefore fails.”
The relevant statutory provisions
5.
Employment Rights Act 1996 (‘ERA’) section 94 (the right to
claim unfair dismissal) does not apply to the dismissal of an employee unless
he has been continuously employed for a period of not less than one year ending
with the effective date of termination. Sections 210(1), (4) and (5) and
212(1) provide for the computation of continuous employment.
Section 219(1) provides as follows:
“Regulations made by the Secretary of State may make provision—
(a) for preserving the continuity of a person’s period of
employment for the purposes of this chapter as applied by, or under any other, enactment
specified in the Regulations.”
6.
Section 219 was amended in 1998. Section 219(2) included the
following:
“This subsection applies to any action taken in relation to the
dismissal of an employee which consists of—
[…] (b) the presentation by him of a relevant complaint of
dismissal […].”
7.
Subsection (3) provides:
“In subsection 2(b), “relevant complaint of dismissal”
means—
(a) a complaint under section 111 of this Act;
(b) a complaint under section 63 of the Sex Discrimination Act 1975
arising out of a dismissal;
(c) a complaint under section 54 of the Race Relations Act 1976
arising out of a dismissal; or
(d) a complaint under section 8 of the Disability Discrimination Act 1995
arising out of a dismissal.”
8.
The Regulations provide, in material part, as follows:
“2. These regulations apply to any action taken in relation to
the dismissal of an employee which consists of—
[…] (b) the presentation by him of a relevant complaint of
dismissal […]
[…] (d) the making of a relevant compromise contract […].”
9.
Regulation 3 provides:
“(1) The provisions of this Regulation shall have effect to
preserve the continuity of a person’s period of employment for the purposes of—
(a) Chapter 1 of Part IV of the Employment
Rights Act (continuous employment) […].
(2) If in consequence of any action to which these Regulations
apply a dismissed employee is reinstated or re‑employed by his employer
or by a successor or associated employer of that employer—
(a) the continuity of that employee’s
period of employment shall be preserved, and
(b) the period beginning with the
date on which the dismissal takes effect and ending with the date of
reinstatement or re‑engagement shall count in the computation of the
employee’s period of continuous employment.”
The submissions of the parties
10.
Ms Cunningham, for the Claimant, submits that the Employment
Tribunal erred in failing to consider and apply the Regulations. Whilst the
parties’ lay representatives had not referred the Employment Tribunal to the
Regulations, their application affected the jurisdiction of the Employment
Tribunal to entertain the Claimant’s complaints, and the Employment Appeal
Tribunal has permitted the point to be taken on appeal. ERA section 219
is the enabling provision pursuant to which the Regulations were introduced.
At the time of their introduction the term “relevant complaint of unfair
dismissal” in subsection (2)(b) was defined in section 219(3) as set
out above. Although subsections (2) to (4) were repealed by the
Employment Rights Disputes Resolution Act 1998,
Ms Cunningham contended that the meaning of “relevant complaint of
dismissal” is still the repealed words of section 219. It is submitted
that if the absence of a current statutory definition of “relevant complaint of
dismissal” were to render Regulation 3(2) of the Regulations ineffective
so far as it concerns re‑employment in consequence of an unfair dismissal
complaint, the amendment would have an effect directly opposed to that
intended. Ms Cunningham contends that the purpose of the repeal of the
definition provision is to broaden the Secretary of State’s power to provide
for the preservation of continuity. She submitted that it is clear from
paragraph 11 of the Judgment of the Employment Tribunal that the Claimant
was re‑employed in consequence of his presentation of a complaint of
unfair dismissal, therefore Regulation 3(2) of the Regulations operates to
preserve the continuity of his employment.
11.
Mr Halaith, for the Respondent, contended that the Claimant had
been employed on a permanent basis by another employer and he had been
dismissed by that employer on 8 July 2010. He then approached the
Respondent on 20 July 2010 and asked for his job back. So it came
about, it was said, that the Claimant was re‑employed and taken on
again. Mr Halaith, who is a lay representative, in his very cogent
submissions very frankly and understandably says that because he is not a
lawyer he could not make detailed submissions on the Regulations, but as a
matter of common sense where an employee, as this employee, ceased being
employed by the Respondent and became employed by another employer the Claimant
should not be regarded as being continuously employed by the Respondent whilst he
was working for another employer.
12.
Further, Mr Halaith makes very valid points on matters that have been of
serious concern to this Employment Appeal Tribunal: the absence of key
documents from the bundle presented to this Employment Appeal Tribunal. For
example, there is not included in our bundle the ET1 complaint first presented
to the Employment Tribunal as a result of which it is said the Claimant was re‑engaged
and re‑employed, therefore triggering the entitlement to continuity of
employment under the Regulations. It is a key element in what a Claimant has
to establish under the Regulations to show that they made a relevant complaint.
Even if all the submissions made on the law are correct, there was not at first
the material in this bundle to show that a complaint of unfair dismissal had
been made by the Claimant, although there is tangential reference in the
Employment Tribunal’s decision to the sequential turn of events of making a
complaint and then the Claimant being re‑employed. However, after
questions were asked by this Employment Appeal Tribunal, documents were
provided to us. The material parts of the documents show as follows: that on
26 April 2010 in a letter from the Employment Tribunal office there
had been an acknowledgement of the claim which had given a claim number. The
letter addressed to the Claimant stated:
“Your claim of unfair dismissal, race discrimination, breach of
contract, unlawful deduction of wages and unpaid holiday pay has been
accepted. It has been given the above case number.”
13.
There is also a Respondent’s ET3 notice in response to the claim stamped
21 May 2010 referring to a period of employment of the Claimant which
ended on 26 March 2010 and to the fact that the Respondent was then
maintaining that the Claimant was dismissed for misconduct. What was also
produced in the course of the hearing before us was a letter from the
Respondent dated 23 July 2010 to the Claimant:
“We have re‑employed Mr Lipinski on a permanent basis. We
are both in agreement of the following payment:
1 Holiday pay;
2 Notice of pay [sic];
3 Arrears of pay, other payments.”
14.
Again, on enquiry as to what happened to the original 2010 claim on the
basis that such was made, we were shown a document from the Employment Tribunal
headed “Withdrawal of Claim” which stated, “Thank you for informing the
Tribunal that you have withdrawn your claim. I have therefore closed the file”,
and that the file would be retained until 18 August and then destroyed.
15.
Having been provided with that material Mr Halaith is somewhat
understandably concerned that he had not been provided with all necessary
information. He explained the difficult position that he was in because his
uncle was the guiding light in the Respondent and he has now sadly died. Mr
Halaith was not in a position to really make any informed contribution on the contentions
of fact made.
Discussion and conclusion
16.
The Employment Tribunal was not referred to the Regulations. It is
likely that the lay representatives of the parties appearing before the
Employment Tribunal also did not refer to them. There are three elements to be
established by a Claimant if he is to bring himself within the scope of the
Regulations to maintain continuity of employment. First, what has to be shown
is that the Claimant has been dismissed by the Respondent; secondly, that the
Claimant has presented a relevant complaint of dismissal; and thirdly, that in
consequence of presenting such a relevant complaint the dismissed employee is
reinstated or re‑engaged by his employer. If all those elements are
satisfied, then the Regulations preserve the continuity of the Claimant’s
employment between the original dismissal and the date of reinstatement or re‑engagement.
17.
“Relevant complaint of dismissal” in Regulation 2(b) was defined in
the repealed section 219(3)(a) as a complaint under section 111 of
the ERA. The definition section also included the other complaints that we
have set out. Those were complaints of discrimination arising out of a
dismissal under three Acts. Section 219(1) is the enabling provision for
the introduction of the Regulations. In our judgment, it must follow that
absent any contrary provision, whilst in place the definition in the enabling legislation
applies to the Regulations. Therefore before the repeal of the material parts
of section 219, a “relevant complaint of dismissal” included a claim for
unfair dismissal under the ERA. Does the repeal of section 219(3) alter
the position? What now is the meaning of “presentation of a relevant complaint
of dismissal”? There is no new definition. A claim of unfair dismissal is
commenced by a complaint to an Employment Tribunal. In our judgment, a
complaint of unfair dismissal is plainly a complaint of dismissal. In context,
in our judgment, “relevant” means a complaint of unfair dismissal. The “action”
in relation to dismissal is the presentation of an ET1. This interpretation
requires no special definition. ERA section 219 also included before the
amendment complaints of sex discrimination, race discrimination and disability
discrimination arising out of dismissal. It may be said that without the
extended definition which had been in section 219, complaints of discrimination
are not on their ordinary meaning complaints of dismissal. However, it is not
necessary to determine that issue in this appeal, because in our judgment a
complaint of unfair dismissal is plainly a “complaint of dismissal”. The
complaint of dismissal in context where what is complained about is the
dismissal that is reversed by the reinstatement or re‑engagement is a
relevant complaint. A complaint of dismissal that ultimately leads to
reinstatement is a relevant complaint within the meaning of the Regulations.
18.
Does engagement by another employer negate the effect of
Regulation 3? Regulation 3 makes no such provision. We accept that
the construction which we have outlined would have the consequence that whilst
a dismissed employee has accepted employment with a new employer, if he is
reinstated or re‑engaged as a result of bringing a complaint to an
Employment Tribunal in respect of his dismissal by his first employer, his
continuity of employment with that first employer would be maintained.
Mr Halaith – and no doubt others – is understandably puzzled by this
consequence, which seems to him to be contrary to commonsense. However, it is
the effect of the Regulations.
19.
However, the Regulations do not have this effect where the employee has
not been dismissed by the original employer but left, been employed by another
employer and then taken on again after a period of time whether working for another
employer or not working at all. Nor would the Regulations apply where the
employee was dismissed but the reinstatement or re‑engagement was not as
a result of his bringing a claim for unfair dismissal. However, in this case,
in our judgment, on the material that has now been produced to us, it is clear
that the Claimant was dismissed; that is the position taken by the Respondent
in the ET3 that has now been produced to us. Further, it is clear that the
Claimant brought a claim of unfair dismissal arising from his dismissal on
26 March 2010. It is regrettable that evidence of this key element
in the step of reasoning, namely the ET1, is absent from the material placed
before us. However, we consider that the acknowledgement by the Employment
Tribunal, of a claim made by the Claimant of unfair dismissal amongst other
claims, points to the inevitable conclusion that the Claimant had made a claim
of unfair dismissal arising out of the dismissal which took place before
26 April 2010. The Respondent in the ET3 that has now been produced
to us says the dismissal took place on 26 March 2010.
20.
Accordingly, in our judgment, the first two elements that a Claimant has
to establish to bring himself within the Regulations are established on the
documentation that has now belatedly but today been produced to us. However,
as to the third element, namely that in consequence of presenting the complaint
to the Employment Tribunal the dismissed employee is reinstated or re‑employed
by his employer, we have more concerns. That is a question of fact as to
whether is the Claimant was reinstated or re‑engaged because he had
brought a claim of unfair dismissal. Whilst we recognise in this case that
evidence points strongly both chronologically and by reason of a settlement
agreement dated 23 July 2010 to the reinstatement or re‑engagement
having been agreed to and undertaken because the complaint of unfair dismissal
had been made, we do not have the necessary degree of confidence that the third
element is inevitably shown on the material that we have before us to
substitute our decision that the Regulations are satisfied. It is, in our
judgment, perhaps unlikely but maybe possible that there were other reasons for
reinstating or re‑engaging the Claimant. Accordingly, we allow the
appeal and remit the complaint to the Employment Tribunal for consideration of
the third element required in the Regulations, namely whether it was in
consequence of presenting a complaint of unfair dismissal to the Employment
Tribunal that the Claimant was reinstated or re‑engaged by the
Respondent. This matter should be remitted to the same Employment Tribunal
unless that is impracticable or in accordance with the general exceptions in
orders that are made on such remission.
