EAT Transfer of Undertakings : Continuity of Employment – An employee worked at a store in Sheffield, which closed down, and his employment was terminated as a result. During what would have been the next working week, he agreed to accept employment with the same employer in Blackpool, with the first working day falling in the following week. A few months later he was dismissed. An EJ found there was no continuity of employment. Three points arose – whether an agreement made in one week to start work in the next was a contract of employment such that under Part XIV ERA 96 there was no break in continuity; whether there had been a cessation of work (being temporary) to which s.212 applied; and whether the EJ was right to regard an ‘arrangement’ in the phrase ‘arrangement or custom’ in s.212(3) as one which could not be made retrospectively (a point upon which there was conflicting EAT authority).
Held (1) There was a contract of employment, notwithstanding that work had yet to be performed under it; (2) the absence was on account of cessation of work, and could only be regarded as temporary (such that the appeal was allowed) but (3) the judge was right that an arrangement could not be entered retrospectively so as to confer continuity. London Probation Board v Kirkpatrick which had decided the contrary should no longer be followed by Tribunals.
Langstaff P J
 UKEAT 0266 – 12 – 2111
England and Wales
Updated: 09 November 2021; Ref: scu.466978