Where an employee is absent from work from one employer due to a temporary cessation of work and then starts work with an associated employer, is the employee continuously employed for purposes of bringing an unfair dismissal claim?
In Holt v EB Security Ltd UKEAT/0558/11/CEA, Holt (“the Claimant”) was employed at a pub from July 2007 until it closed and his employment terminated in March 2009. Fourteen days later he was employed by an associated employer in a different role. Within a year, January 2010, the Claimant was dismissed.
The Claimant appealed an Employment Tribunal decision that he did not have requisite one year’s continuous employment as there was no employment contract during the gap of employment.
The EAT held that continuity of employment was preserved, which allowed the Claimant to bring a claim of unfair dismissal.
They stated that looking back from the vantage point of his new job, there was a temporary cessation of work, when his first employer closed and he was absent from work due to that cessation. There was no need for the associated employer to resume the operations of the first employer; any work with an associated employer would suffice to preserve continuity.
For employees whose employment commenced before 6 April 2012 must have at least one year`s service to bring a claim for ordinary unfair dismissal. However, employees who commenced employed on or after 6 April 2012 must have two years service.