EAT Jurisdictional Points: Continuity of Employment
Continuity of employment – Sections 210(5) and 218(6) Employment Rights Act 1996 (‘ERA’)
In circumstances involving a change of employer, the Employment Tribunal (‘the ET’) had been wrong to consider that the presumption of continuity of employment provided by section 210(5) ERA applied (section 218(1) ERA). That did not, however, render the decision unsafe. The ET’s conclusions were ultimately founded not upon a presumption of continuity but upon permissible findings of fact.
Furthermore, in deciding that the Respondents and the Claimant’s previous employer were ‘associated’ for the purposes of section 218(6) ERA, the ET applied the correct test, that is one of legal control.
In this case, the Respondents had chosen not to attend the ET and had given only limited disclosure as to the ultimate ownership of the previous employer. The ET had been entitled to conclude that the Respondents were better placed that the Claimant to discover the true position (not least as this was consistent with the Respondents’ own position in disclosure). There was no clearly transparent evidence as to where ultimate legal control vested. In these circumstances, the ET was entitled (following the approach allowed in Secretary of State for Employment v Chapman and Payne [1989] ICR 771 CA) to have regard to the surrounding facts and to draw an inference as to the position in terms of legal control.
Appeal dismissed
Eady QC HHJ
[2015] UKEAT 0100 – 15 – 0409
Bailii
England and Wales
Employment
Updated: 06 January 2022; Ref: scu.554879
