Veitch Penny LLP - Exeter | Crediton, Devon

Case

Cheryl Curr v Marks & Spencer Plc

Issues

(1) Continuity of Employment
(2) Unlawful deductions
(3) Contract of Employment

Facts

In July 1999, the Applicant was made redundant by the Respondent, and had received a redundancy payment calculated on the basis that she had been continuously employed from 28 August 1994. Accordingly, the Applicant made a complaint to the Employment Tribunal alleging that she had suffered an unlawful deduction from her wages. She claimed that she had been continuously employed from 3 March 1973, and her redundancy payment should therefore be calculated from that point. She argued that a period during which she was on a Child Break Scheme (namely November 1990 to August 1994) was a period of continuous employment under section 213(3)(c) of the Employment Rights Act 1996. This claim was dismissed.

The Applicant then appealed the decision.

The issue the Employment Appeal Tribunal had to consider was whether the Applicant had continuity of employment from 1973, or whether it had been broken by the period on the scheme. The Applicant argued that during the scheme itself, relations were still governed by a contract of employment, and that the scheme amounted to an arrangement by which she was regarded as continuing in employment. The effect would be to preserve her continuity of employment. t was noted that the Applicant was not told that she would have to resign or terminate her employment, nor was she told of the consequences for her employment rights. The terms of the scheme itself required the Applicant to resign and forego all existing staff benefits.

The Tribunal found that the contract of employment did not continue through the period that the Applicant participated in the scheme. This was because there was an absence of mutuality of obligations between the parties. It was found that the scheme did amount to an arrangement within s. 212(3) and therefore the employment relationship continued throughout. The Applicant's appeal was allowed.

The Respondent then appealed the decision.

Decision

The Appeal Tribunal found that the Applicant was not regarded as continuing in the employment of the Respondent because the Applicant had accepted the terms and conditions of the scheme. Furthermore, her terms and conditions on re-employment also demonstrated that she was not regarded as continuing in employment during the scheme. It was held that the original tribunal had been correct to find that there was no arrangement within s.212(3)(c) of the Act, and the appeal Tribunal had been incorrect. The appeal was allowed.

Comments

The Appeal Tribunal expressed its concern as to the limited information supplied to the Applicant when she was persuaded to participate in the scheme, emphasising the need for employers to ensure that their employees are fully informed when having to make decisions such as this.