Continuity of Employment

In London Probation Board v Kirkpatrick, the EAT has considered a specific aspect of the tricky question of whether employer and employee can agree periods of continuity of employment.In London Probation Board v Kirkpatrick, the EAT has considered a specific aspect of the tricky question of whether employer and employee can agree periods of continuity of employment.

Mr Kirkpatrick was dismissed. Two months later, he was reinstated in an internal appeal. A month after that, the employer reneged and restored the original dismissal. Unless the reinstatement meant that continuity of employment continued, Mr Kirkpatrick (a) was out of time to bring a claim based on the original dismissal; and (b) lacked one year's qualifying period in respect of the second dismissal.

The Employment Appeal Tribunal (HHJ McMullen presiding), recognising the existence of inconsistent authorities, held:

- it is open to an employer and employee to arrange, under s212(3)(c) of the ERA 1996, that absence from work should count towards continuity of employment;

- a reinstatement would qualify as such an arrangement; and,

- there is nothing in the wording of s212(3)(c) that requires the 'arrangement' to have been agreed BEFORE the dismissal. It is perfectly legitimate for the 'arrangement' to arise after the dismissal, i.e. following the internal appeal hearing.

The EAT was swayed by the policy argument that it is far better for an employer to be able to admit it has made a bad or unfair dismissal and to put it right by voluntary reinstatement, than for the employee to have to bring a claim and require an order for reinstatement via a tribunal or Acas (when, under separate statutory provisions, there is a deemed continuity of employment).

Mr Kirkpatrick was dismissed. Two months later, he was reinstated in an internal appeal. A month after that, the employer reneged and restored the original dismissal. Unless the reinstatement meant that continuity of employment continued, Mr Kirkpatrick (a) was out of time to bring a claim based on the original dismissal; and (b) lacked one year's qualifying period in respect of the second dismissal. The Employment Appeal Tribunal (HHJ McMullen presiding), recognising the existence of inconsistent authorities, held: - it is open to an employer and employee to arrange, under s212(3)(c) of the ERA 1996, that absence from work should count towards continuity of employment; - a reinstatement would qualify as such an arrangement; and, - there is nothing in the wording of s212(3)(c) that requires the 'arrangement' to have been agreed BEFORE the dismissal. It is perfectly legitimate for the 'arrangement' to arise after the dismissal, i.e. following the internal appeal hearing. The EAT was swayed by the policy argument that it is far better for an employer to be able to admit it has made a bad or unfair dismissal and to put it right by voluntary reinstatement, than for the employee to have to bring a claim and require an order for reinstatement via a tribunal or Acas (when, under separate statutory provisions, there is a deemed continuity of employment).

London Probation Board v Kirkpatrick