Veitch Penny LLP - Exeter | Crediton, Devon

Case

London Probation Board v Kirkpatrick
Employment Appeal Tribunal - (07 January 2005)

Issues

(1) Contract of Employment
(2) Continuity of Employment
(3) Employment Rights Act 1996

Facts

Mr Kirkpatrick had been employed as a Process Finance Manager by the London Probation Board. Following a disciplinary procedure he was dismissed but two months later was reinstated after an internal appeal. A month later he received a letter from his employer informing him that the original dismissal was being upheld.

Mr Kirkpatrick made various claims to the employment tribunal. However unless he could show that his continuity of employment continued on reinstatement, he would have been out of time to bring a claim based on his first dismissal and would also have lacked sufficient length of service to claim in respect of the second one.

Decision

The tribunal held:

(i) That it was open for the employee and the employer to arrange (under Section 212(3)(c) of the Employment Rights Act 1996 that absence from work could be included in continuity of employment;

(ii) Reinstatement following a dismissal could qualify as an arrangement mentioned in (i) above; and

(iii) The arrangement does not have to be agreed before the gap and can arise after the dismissal (i.e. following an internal appeal hearing).

Accordingly, Mr Kirkpatrick had continuity of employment following the decision to reinstate him, and the effective date of termination was the later date on which he was dismissed. The case was submitted to the tribunal for rehearing. Application for permission to appeal to the court of appeal was refused.

Comments

The Employment Appeal Tribunal (EAT) felt it was better for an employer to be able to admit a bad or unfair dismissal and put it right by voluntary reinstatement rather for an employee to be forced to make a claim requiring an order for reinstatement which would give continuity of employment under statute.