Continuity of Employment

Thanks to Georgina Bryan of Littleton Chambers for preparing this case summary

Did the employment tribunal’s erroneous view that the presumption of continuity of employment applied vitiate its conclusion?

Not in this case, held the EAT in Thames-Side Court Estate v Jones.

s.218 ERA provides that where X is employed by A and B in succession, the change of employer will not break continuity of employment where A and B are “associated employers”. Employers are “associated” if one is a company over which the other has indirect control. The employment tribunal held that the Claimant had sufficient continuity of employment to bring an unfair dismissal claim on this basis.

In the EAT it was undisputed that the employment tribunal had erred in considering that there was a presumption of continuity of employment in cases involving associated employers. However, this was not fatal to the employment tribunal’s decision.

The first employer company was part of an opaque corporate structure. The Respondents had declined to attend the employment tribunal and provided only limited disclosure. In these circumstances, and on the facts of the case, the employment tribunal was entitled to infer that the first employer had an ultimate human beneficiary who was a member of the Respondents’ family. The employment tribunal had made permissible findings of fact and applied the correct test for an “associate employer”, namely whether one employer had legal (rather than de facto) control over the other.