Continuity of Employment in the NHS

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

The EAT (HHJ McMullen QC presiding) has handed down Judgment in the case of Winchester and Eastleigh Healthcare NHS Trust v Walker which is authority for the proposition that (apart from TUPE and statutory reorganisations) statutory continuity of employment is not preserved for NHS staff moving between different health service employers unless S218 (8) ERA 1996 applies, which preserves continuity in prescribed circumstances.

In calculating a Basic Award, the employment tribunal incorrectly used the Claimant’s entire service within the NHS, rather than the period when she worked for the Respondent Trust. The EAT reduced the Basic Award as the Tribunal had disregarded S218 (8), which preserves continuity for staff moving between NHS employers in specified circumstances – see S218 (9) - which did not apply to the Claimant.

The Claimant objected to this point being raised in the appeal, but the EAT held that the as the substance of the S218 (8) point was live before the tribunal, it could be raised on appeal.

The Judgment also has commentary on contractual and statutory continuity at paragraph 22.