Under regulations, reinstating an employee after they have worked elsewhere preserves the service lost since dismissal

In Lipinski v Ebbsfleet Autospray Centre Ltd the EAT had to decide whether continuity of employment had been broken when an employee was reinstated as part of the settlement of his unfair dismissal claim.

Facts

Lipinski had been working for another employer during the four month period between his dismissal and his reinstatement. The preliminary point for the tribunal was whether he had the necessary length of service to claim unfair dismissal. In this case he needed one year’s service, as the date of termination was before 6 April 2012, the date on which the qualifying period for unfair dismissal claims increased from one to two years. The dates of employment were crucial. In summary, the chronology looks like this. Lipinski:

  • began work for Ebbsfleet on 3 October 2006 
  • was dismissed for the first time on 11 July 2008 
  • was re-employed on 3 December 2008
  • was dismissed for a second time on 25 March 2010
  • presented an unfair dismissal claim
  • began working for another employer, Nationwide Crash Centre, in April 2010
  • entered into a settlement agreement with Ebbsfleet and withdrew his unfair dismissal claim
  • was reinstated at Ebbsfleet as part of the settlement agreement with effect from 19 July 2010
  • was dismissed for the third time on 20 May 2011.

The tribunal decided that Lipinski was not employed by Ebbsfleet during the period 25 March 2010 to 19 July 2010 and, therefore, did not have the necessary one year’s service to present an unfair dismissal claim. He appealed.

EAT

The Employment Appeal Tribunal upheld his appeal. While the Employment Rights Act 1996 is now silent on the issue of continuity of employment in such circumstances (following the repeal of S.219, sub-sections 2-4), the Employment Protection (Continuity of Employment) Regulations 1996 did apply, but had not been taken into account by the tribunal. Under these regulations, a dismissed employee who presents a relevant tribunal complaint (which includes a claim for unfair dismissal) and is then reinstated or re-engaged as a consequence, or in accordance with Acas conciliation or a settlement agreement, is entitled to continuous employment for the period between dismissal and reinstatement. In this case, it did not matter that from April 2010 through to July 2010, Lipinski had worked for another employer.

The EAT, therefore, remitted the case to the tribunal to determine whether Lipinski had in fact been reinstated because of his original unfair dismissal claim, or for some other reason.

Comment

This case is a reminder that where the law is concerned, the devil can be in the detail, particularly where rarely referred to pieces of legislation are involved.

Employers should keep the 1996 regulations in mind and, where a tribunal complaint has been lodged, take legal advice when reinstating employees as a result of a successful appeal against dismissal, or a settlement to resolve the issue. Otherwise there may be a poison pill that needs to be swallowed later. Organisations should also remember that an employer and employee are not allowed to agree that a period of continuous employment has ended if the law states otherwise.

It may seem odd that someone can be considered to have continuous employment with one employer while having worked for another employer at the same time. But that is what the regulations say, and the principle sits on all fours with the term ‘reinstatement’. It means that the dismissal is treated as never having taken place.

Makbool Javaid is a partner and head of employment law at Simons Muirhead and Burton

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