Dr Porter-Turner v Royal Berkshire NHS Trust: 3311610/2023

EMPLOYMENT TRIBUNALS

Case No 3311610/2023

Between

Dr Porter-TurnerClaimant

Royal Berkshire NHS TrustRespondent

Before

Employment Judge Shrimplin

Mr Rix (instructed by counsel) for respondent

Date 7 August 2024

JUDGMENT

[1]For the reasons given in oral judgment at Watford Employment Tribunal at a Public Preliminary Hearing on 9th May 2024, the Tribunal does not have jurisdiction to hear the claimant’s claim for unfair dismissal and that claim is therefore dismissed. RESERVED JUDGMENT

[2]ON PRELIMINARY ISSUE(1) The Claimant had not been continuously employed for a period of (at least) two years ending with the “relevant date” (which was 15 August 2023).

(2) The Claimant did not have the “qualifying period of employment” defined in section 155 of the Employment Rights Act 1996 (“ERA”) and therefore did not, and does not, have any right to a redundancy payment within the meaning of Part XI ERA (sometimes known as a “statutory redundancy payment”) arising from the termination of employment in August 2023. 1 of 34

REASONS

[1]The Claimant is a former employee of the Respondent.

[2]This was a preliminary hearing to determine the preliminary issue identified by EJ Shrimplin in the case management orders sent to parties on 3 June 2024, namely to decide whether the Claimant had sufficient qualifying period of employment for a statutory redundancy payment.

[3]It had already been decided that the Claimant did not have a sufficient qualifying period of employment for an unfair dismissal claim, as a result of the judgment of EJ Shrimplin sent to parties on 3 June 2024.

[4]I informed parties that, as far as tribunal staff had been able to ascertain, there had been no request for written reasons or for reconsideration of that judgment. The parties appear to accept that that is the case.

[5]There is a letter from the Claimant to the Employment Appeal Tribunal (“EAT”) dated 16 July 2024 which had been copied to this Tribunal. No actual appeal to EAT had been presented, as of the date of this preliminary hearing.

[6]I asked both parties if either of them was going to suggest to me that we did not proceed on 26 July, and both parties stated that we should proceed; I was also content to do that. The Hearing and the Evidence

[7]The hearing was entirely by video, and no technical problems arose.

[8]I had electronic versions of various documents, some of which I did not need because they had been originally produced for the earlier preliminary hearing, and/or had been replaced by newer versions. The remainder were8.1 Bundle of 204 pages (produced by the Claimant) plus an index.

8.2 Extract from Agenda for Change (section 16).

8.3 Agenda and draft list of issues (for final hearing, subject to outcome of preliminary issue).

8.4 Written statement from the Claimant dated 10 July 2024.

[9]I also had access to the Tribunal’s file. 2 of 34

[10]The Claimant swore to the accuracy of their written statement and answered questions from the other side and from me. There was no other witness evidence.

[11]The Respondent had prepared a skeleton argument which the Claimant and I had in advance of the hearing. I heard oral submissions from both parties.

[12]This took up the entire two hour hearing slot, and so I reserved my judgment. We had a brief case management discussion after that, and a separate summary and orders document has been prepared about that. The Law Redundancy Payment Provisions in the Employment Rights Act 1996

The Law

[13]The Employment Rights Act 1996 (“ERA”) includes Part XI which deals with the rights of employees to receive statutory redundancy payments from their employers (or from Secretary of State, in some circumstances).

[14]Section 135 is a basic introduction, and makes clear that the right is subject to various other sections (including section 155).

[15]Section 163 allows the parties to have a determination made by an employment tribunal about Any question arising under this Part as to—(a) the right of an employee to a redundancy payment, or

(b) the amount of a redundancy payment,

[16]Chapter IV of Part XI ERA, which deals with “general” exclusions from right a redundancy payment (and some other specific exclusions are set out elsewhere within Part XI). Within Chapter IV, section 155 states: 155. Qualifying period of employment. An employee does not have any right to a redundancy payment unless he has been continuously employed for a period of not less than two years ending with the relevant date.

[17]The “relevant date” is defined by section 145. It is usually the date on which the contract of employment terminates, subject to some exceptions. Section 145 includes: (4) Where the employee is regarded by virtue of section 138(4) as having been dismissed on the date on which his employment under an earlier contract ended, “the relevant date” means— 3 of 34(a) for the purposes of section 164(1), the date which is the relevant date as deﬁned by subsection (2) in relation to the renewed or new contract or, where there has been more than one trial period, the last such contract, and

(b) for the purposes of any other provision, the date which is the relevant date as deﬁned by subsection (2) in relation to the previous contract or, where there has been more than one such trial period, the original contract. (5) Where— (a) the contract of employment is terminated by the employer, and (b) the notice required by section 86 to be given by an employer would, if duly given on the material date, expire on a date later than the relevant date (as deﬁned by the previous provisions of this section), for the purposes of sections 155, 162(1) and 227(3) the later date is the relevant date.

[18]Section 138(1) specifies certain circumstances in which the employee “shall not be regarded for the purposes of this Part as dismissed by his employer by reason of the ending of his employment under the previous contract”. The requirements include that there is an offer of a new contract made before the termination date of the old contract, and that the new contract will commence “not more than four weeks after” the old contract terminates. Section 138(2) specifies the exceptions. Because of section 146, in these circumstances, where one contract of employment ends on a Friday, and the next one starts the following Monday, that is treated as taking effect immediately. Similarly, where one contract of employment ends on a Friday (or Saturday or Sunday) then the four week maximum interval, mentioned in section 138(1), is counted as if the old contract ended on the Monday after the actual end date. Continuous Employment

[19]The rules about continuous employment are contained within Chapter I of Part XIV ERA. Because of section 210(5), “employment during any period shall, unless the contrary is shown, be presumed to have been continuous”.

[20]Section 211 includes: 211.— Period of continuous employment. (1) An employee's period of continuous employment for the purposes of any provision of this Act— (a) (subject to (3)) begins with the day on which the employee starts work, and (b) ends with the day by reference to which the length of the employee's period of continuous employment is to be ascertained for the purposes of the provision. 4 of 34

[21]Any week during (the whole or part of) which the employee's relations with the employer are governed by a contract of employment counts in computing the employee's period of employment: Section 212(1) ERA. “Week”, in this context, means a week a week running from Sunday to Saturday, as defined by Section 235(1) ERA. There are some exceptions (that is, some weeks governed by a contract of employment do not count) but none of the exceptions are relevant here.

[22]However, in addition, some other weeks can count too, as per section 212: (3) Subject to subsection (4), any week (not within subsection (1)) during the whole or part of which an employee is—(a) incapable of work in consequence of sickness or injury,

(b) absent from work on account of a temporary cessation of work, or

(c) absent from work in circumstances such that, by arrangement or custom, he is regarded as continuing in the employment of his employer for any purpose, counts in computing the employee's period of employment.

[23]For the first of these three, all that is required is that, in each of the weeks alleged to count, the employee was incapable of work (because of health). This is subject to a maximum of 26 weeks.

[24]The second of these three was analysed by the House of Lords in Ford v Warwickshire CC

[1983] 2 AC 71

.24.1 The word "temporary" in section 212(3)(b) means “lasting only for a short period of time”.

24.2 An employee can establish a period of continuous employment, if, looking back over the history of the employment and the successive contracts, the interval between contracts was relatively short, assessed by taking account of all the facts, including the durations of the contracts themselves.

24.3 Given that there is a presumption of continuity, continuity is only broken if it is decided that, between one contract and its immediate predecessor an interval that could not be characterised as “short” - relative to the combined duration of the two successive contracts either side of the interval – exists. Such characterisation is a question of fact and degree.

[25]The fact that a claimant worked for another employer during a particular period does not necessarily prevent the Tribunal deciding that the period fell within section 212(3)(b). However, the reason for the absence has to be the temporary cessation of work. Thus, if an employee voluntarily left an employment contract in order to work for a different employer, then that would prevent section 212(3)(b) applying. 5 of 34 Likewise, if the employee was dismissed for (for example) conduct or capability rather than lack of work, then section 212(3)(b) would not apply.

[26]Section 212(1) and section 212(3)(c) were each considered in Welton v Deluxe Retail Ltd

UKEAT/0266/12/ZT

. The very start of a period of continuous employment only counts from when the employee actually starts work, rather than the date (if earlier) from which a binding contract was entered into; however, when analysing whether there has been a break in continuity, the analysis is different.26.1 When a contract ends one week, and the very next week, a new contract is entered into, then both weeks count under section 212(1) and thus there is no break in continuity.

26.2 The mere fact that the new contract did not require the employee to start work straight away (the same week) did not change that.

[27]In terms of section 212(3)(c), however, after a thorough review of decided cases, the EAT, in Welton, decided that it would not have been enough to establish continuity if the employee had had to rely on the argument that, when he started under the new contract, the employer had said that he would have had continuity of employment. The Respondent’s (later) agreement to (purportedly) preserve continuity was not a situation covered by section 212(3)(c). The custom or arrangement had to exist at the time of the “absence, rather than at the time when the absence ended and there was to be a new contract of employment.

[28]There are also, by virtue of section 213, some other periods, not otherwise covered by section 212, which can count toward continuous employment. In so far as is potentially relevant here, they are: (2) Where an employee is by virtue of section 138(1) regarded for the purposes of Part XI as not having been dismissed by reason of a renewal or re-engagement taking effect after an interval, the period of the interval counts as a period of employment in ascertaining for the purposes of section 155 or 162(1) the period for which the employee has been continuously employed (except so far as it is to be disregarded under section 214 or 215). (3) Where in the case of an employee a date later than the date which would be the relevant date by virtue of subsections (2) to (4) of section 145 is treated for certain purposes as the relevant date by virtue of subsection (5) of that section, the period of the interval between the two dates counts as a period of employment in ascertaining for the purposes of section 155 or 162(1) the period for which the employee has been continuously employed (except so far as it is to be disregarded under section 214 or 215).

[29]Section 214 deals with breaks in continuity affecting Part XI (including section 155) only. This potentially applies where there has been a redundancy payment in relation to a particular period of employment. 6 of 34 Different Employers

[30]Generally speaking, for there to be continuous employment, it has to be with the same employer. This is subject to any exceptions set out in other legislation, or in section 218 ERA. The potentially relevant parts of section 218 are: (3) If by or under an Act (whether public or local and whether passed before or after this Act) a contract of employment between any body corporate and an employee is modiﬁed and some other body corporate is substituted as the employer—(a) the employee's period of employment at the time when the modiﬁcation takes effect counts as a period of employment with the second body corporate, and

(b) the change of employer does not break the continuity of the period of employment. (8) If a person employed in relevant employment by a health service employer is taken into relevant employment by another such employer, his period of employment at the time of the change of employer counts as a period of employment with the second employer and the change does not break the continuity of the period of employment. (9) For the purposes of subsection (8) employment is relevant employment if it is employment of a description— (a) in which persons are engaged while undergoing professional training which involves their being employed successively by a number of different health service employers, and (b) which is specified in an order made by the Secretary of State. (10) The following are health service employers for the purposes of subsections (8) and (9)— (za) NHS England, (zb) an integrated care board established under section 14Z25 of the National Health Service Act 2006, (b) Special Health Authorities established under section 28 of the National Health Service Act 2006 or section 22 of the National Health Service (Wales) Act 2006,

(c) National Health Service trusts established under the National Health Service Act 2006 or the National Health Service (Wales) Act 2006, (ca) NHS foundation trusts, (cb) Local Health Boards established under section 11 of the National Health Service (Wales) Act 2006, (cc) the National Institute for Health and Care Excellence (ce) the Health Services Safety Investigations Body. 7 of 34

[31]The list of organisations specifically named in section 218(10) changes from time to time as different health bodies come and go (for example, (zb) referred to clinical commissioning groups when they existed) and so it is potentially necessary to consider older versions of the section, and the transitional arrangements (as well as deciding whether section 218(3), or TUPE, applies to any particular change of employer).

[32]Section 218(9) is subject to The Employment Protection (National Health Service) Order 1996 (“the 1996 Order”) which specifies that (in addition to the other requirements), it applies only to:(a) employment as a registered medical practitioner or registered dental practitioner in the grade of Registrar, Senior Registrar, Specialist Registrar, Registrar (Public Health), Senior Registrar (Public Health) and Specialist Registrar (Public Health)

(b) employment in the grade of clinical scientist trainee or clinical psychology trainee; and

(c) employment in the grade of general management training scheme trainee or financial management training scheme trainee.

[33]Article 3 of the 1996 Order specifies the legislation which is amended. It does so by reference to the Employment Protection (Consolidation) Act 1978 (“the 1978 Act”) which was the predecessor to the ERA. Because of the savings provisions within the ERA, the 1996 Order (and also the 1993 Order) did not cease to apply, but rather they continued to have effect as if they had been made under ERA. However, Article of the 1996 Order does not include s. 81 of the 1978 Act (General provisions as to right to redundancy payment) as one of the pieces of legislation affected. This is significant because it was section 81(4) of the 1978 Act (as amended) which corresponded to what is now section 155 ERA.

[34]The Redundancy Payments (National Health Service) (Modification) Order 1993 (“the 1993 Order”) (as amended) is also relevant.34.1 It potentially applies to situations in which a person is employed by an organisation listed in Schedule 1 of the 1993 order, and that contract of employment terminates, but there is then a renewal or re-engagement in circumstances which would fall within section 138(1), if the renewal or reengagement was with the same employer. That is, therefore, circumstances in which continuity of employment (for Part XI) purposes, would be counted by taking account of section 213(2) ERA, if the renewal or re-engagement was with the same employer.

34.2 Because of the appendix to Schedule 2, the effect is that – for statutory redundancy entitlement purposes – where an employee’s employment with one Schedule 1 employer ends, but before the employment ends, they were offered employment with a different Schedule 1 employer – to start without a break 8 of 34 exceeding 4 weeks (calculated to take account of section 146) – then there is no entitlement to redundancy pay from the first employer, but instead continuity of employment (for statutory redundancy entitlement purposes) is unbroken, and the interval between contracts (if any) also counts towards “continuous employment”..

34.3 This means that if the new employer later dismissed the employee by reason of redundancy, then the redundancy entitlement (if any) is calculated by including the continuous employment that had been built up with the previous employer (which, in appropriate circumstances, might have carried over existing continuity from prior employers).

34.4 However, where a redundancy payment had been made by a previous (Schedule 1) employer, then the consequences in this paragraph would only apply to periods of employment that were later than that payment. Contract of Employment

[35]The definitions of employee and contract of employment appear in s.230 of the Employment Rights Act 1996. (“ERA”) 230.— Employees, workers etc.(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

(2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing. … (4) In this Act “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.

[36]There does have to be a contract between the parties. If there is no contract between the parties then the claimant cannot be an employee.

[37]However, where there is a contract then there are a number of tests to apply in order to determine whether that is, on the one hand, a contract of service, (to use the old terminology), or a contract of employment (to use the more modern terminology), or, on the other hand, some other type of contract. In Welton, the EAT noted that, at common law, there is no real difference in meaning between the phrases “contract of employment” and “contract of service”.

[38]Assessing whether a contract is a “contract of employment” includes taking account of the following factors. Where some of these factors point in opposite directions, then it is necessary to weigh them up and assess their relative importance. 9 of 3438.1 There has to be sufficient control by the respondent (the alleged employer).

38.2 There has to be a mutuality of obligation

38.3 There has to be n agreement by the claimant to do the work personally.

[39]The degree of control which must be exercised by the respondent over the claimant in order for there to be a “contract of employment” is discussed in Ready Mixed Concrete v Ministry of Pensions and National Insurance [1968]. The factors relevant to mutuality of obligation are discussed in Carmichael v National Power.

[40]Outside the field of employment law the ability of the courts to look behind the words of an express written contract is limited to situations where the parties have a common intention to mislead a third party as to the true nature of the arrangement and that is called a “sham”. In the field of employment law, that approach is modified by the leading cases of Autoclenz Ltd v Belcher and ors

2011 ICR 1157

, SC (“Autoclenz”) and Uber BV v Aslam

[2021] UKSC 5

40.1 A tribunal that is faced with an allegation that a written contract is not what it appears to be must consider whether or not the words in the written contract represent the true intentions or expectations of the parties.

40.2 In doing so, it is relevant to take into account that the purpose of employment legislation (including ERA and EQA) is to provide protection, including to those who do not have equal bargaining power with the alleged employer.

40.3 The tribunal must consider whether or not the words of the written contract represent the true intentions or expectations of the parties (and therefore their implied agreement and contractual obligations), not only at the inception of the contract but at any later stage where the evidence shows that the parties have expressly or impliedly varied the agreement between them.

40.4 Determining the true intentions of the parties does not mean that a tribunal should base its decision on what one (or each) party thought privately to itself; rather it requires the tribunal to determine what was actually mutually agreed – in reality – between the parties

[41]As per Protectacoat Firthglow Ltd v Szilagyi

2009 ICR 835

, CA (“Szilagyi”), and Uber, what purports to be a (written) agreement between the claimant and/or the respondent, on the one hand, and a third party, on the other hand, also potentially falls to be analysed in a manner which takes account of the role of the alleged employer, and its bargaining power. The court or tribunal, when considering an argument that there is a contract of employment between the claimant and the respondent can/must assess whether the true nature of what was agreed is not what is reflected on the face of the written agreement(s), including with third 10 of 34 parties, but, in reality, the true agreement amounted to a direct contract of employment between the claimant and the respondent.

[42]There can be situations where:42.1 there is an actual tripartite relationship, between A, B and C, and where C does work for A, but with no express contract (written or otherwise) between A and C.

42.2 A and B have a contract such that B agrees to supply an individual (C) to do work for A which is supervised by A, and A agrees to pay B for this;

42.3 B and C have a contract such that C agrees with B that C will do work for A which is supervised by A, and B agrees to pay C for this.

[43]In a situation such as this one, (that is, where the Claimant has not been able to demonstrate that the written contracts do not represent the true agreement), the test for whether there is an implied contract directly between A and C is as set out in James v Greenwich which in turn referred to the test explained in The Aramis

[1989] 1 Lloyd's Rep 213

(“Aramis”). The question is whether it is necessary to imply a contract between the worker and the end user “in order to give business reality to a transaction and to create enforceable obligations between parties who are dealing with one another in circumstances in which one would expect that business reality and those enforceable obligations to exist.”

[44]As per The Aramis, the fact that the conduct of the parties was more consistent with an intention to contract than with an intention not to contract it is insufficient to imply a contract between them. Furthermore, if A and C would (or might) have acted exactly as they did in the absence of a direct contract between them, then that is fatal to the argument that it is necessary to imply a contract between them.

[45]This test of necessity is the correct test to apply even in situations where there is a lengthy and/or complex chain of organisations involved in the supply of C to A, and even in situations where the claimant raises a human rights argument to suggest that proper protection of their rights requires that they have the same rights that would be afforded to a worker or employee of A’s.

[46]As per Dacas v. Brook Street Bureau (UK) Ltd

[2004] ICR 1437

, the existence of an implied contract between the individual and the end user is a possible finding that a court or tribunal might make in an appropriate case, if such a decision is justified on the facts, and if the necessity test is met.

[47]As discussed by the Court of Appeal in Tilson v Alstom Transport,

[2010] EWCA Civ 1308

, 2010 WL 4642142: 11 of 3447.1 The mere fact alone that C might be integrated in A’s business does not make it necessary to imply a contract between A and C, because it is equally consistent with someone supplied to work as an agency worker. The court added, at paragraph 41, “The degree of integration may arguably be material to the issue whether, if there is a contract, it is a contract of service. But it is a factor of little, if any, weight when considering whether there is a contract in place at all.”

47.2 A simple divergence between what one of the written contracts says and the actual practice does not – in itself – make it necessary to imply a contract between A and C. It could be the case, for example, that one of the parties is in breach of the contract between A and B, or in breach of the contract between B and C, without the fact of that breach existing (and – perhaps – being ignored or waived) making it necessary to imply a contract between A and C. On the facts of that case, as per paragraph 47, “The contract between Morson and Alstom under which Morson undertook to provide his services fully explained why he was working for Alstom, and there was no evidence before the Employment Tribunal that in their dealings with the appellant, Alstom acted inconsistently with the terms of that contract.”

47.3 The mere fact alone that C might have to give advance notice to A of absence (or even the fact that A might have the right to veto C’s voluntary absence) is not, in itself, enough to require that a contract between A and C needs to be implied to explain the business reality. The findings of fact West Hampshire CCG. October 2016 to September 2017

[48]The Claimant performed work for the above organisation via a temporary work agency (or other intermediary) without a direct contract between the Claimant and the organisation. [Bundle 84]. Broken Ribs. January 2018

[49]Around 7 January 2018, several weeks after the end of the above-mentioned contract, the Claimant broke some ribs. [Bundle 82]

[50]Other than the A&E document, there is no particular medical evidence about how long this would have meant that the Claimant was unable to work.

[51]The Claimant alleges that she could not work for two months because of this. Given that her work did not involve significant manual handling, and given that she has failed to supply medical evidence, my finding, on the balance of probabilities, is that the period in which she was unable to work was shorter than two months. 12 of 34 Surrey Downs CCG. March 2018 to March 2019

[52]From around March 2018 to 19 March 2019, the Claimant worked as an employee for Surrey Downs CCG. [Bundle 81]. Buckinghamshire, Oxfordshire, Berkshire. March to July 2019

[53]Between around March 2019 and July 2019, the Claimant worked for NHS Buckinghamshire, Oxfordshire, Berkshire via a temporary work agency (or other intermediary) without a direct contract between the Claimant and the organisation. [Bundle 80] Newham CCG, commencing 14 October 2019

[54]The Claimant has presented a document [Bundle 77] which appears to be an extract, rather than the whole.

[55]It states: This attachment sets out the special terms and conditions that will apply to the provision of services of Melanie Porter-Turner between Real Staffing Group, a trading division of SThree Partnership LLP and Umbrella-Company Limited. Real Staffing Group, a trading division of SThree Partnership LLP and UmbrellaCompany Limited acknowledge that the conditions of this Particular Agreement form part of the Master Agreement and should there be any conflict between this Particular Agreement and the Master Agreement, this Particular Agreement shall prevail.

[56]The document describes the Claimant as “Specified Consultant”. It specifies standard weekly commitment as 37.5 hours. It specifies “client name” as NHS Newham CCG. It specifies start/end date as 14 October 2019 to 31 December 2019.

[57]In the document produced by the Claimant [Bundle 73], the Claimant has asserted that they were an employee of NHS Newham CCG from 8 October 2019 to 31 December 2020.57.1 My finding is that that was a mistake and the Claimant intended it to say 31 December 2019 as the end date.

57.2 The correct date is as shown in the Claimant’s list created around 8 November 2022 [Bundle 160], when this litigation was not being contemplated, and which accurately stated that the “end of employment” with Waltham Forest and East London CCG was 31 December 2019.57.2.1 In making this specific finding, I am not addressing the Claimant’s employment status between 1 October 2019 and 31 December 2019; I am simply saying that the contract(s), and the work done under the contract(s), 13 of 34 or other arrangements, ceased with effect from 31 December 2019, and that the Claimant accurately recorded that on 8 November 2022.

57.2.2 Furthermore, in making this finding, I do not ignore (and indeed, I agree with) the Claimant’s observation that there are some mistakes in the document on [Bundle 160] and it had not been prepared as if it was evidence on oath. There are rounded figures and approximations used in some cases. However, 31 December 2020 (as an end date) would not have been likely to have been rounded down to 31 December 2019.

[58]However, even if I am wrong that “31 December 2020” was written by on [Bundle 73] by mistake, my finding is that (regardless of the nature of the employment status), the Claimant ceased performing work for NHS Newham on or around 31 December 2019. My finding is that the Claimant cannot have been contracted to do 37.5 hours for Health Education England (from July 2020) and also in the same period (July 2020 to December 2020) have been contracted to do 37.5 hours for NHS Newham CCG (plus the hours at Hungerford Surgery). Furthermore, the Claimant’s own document [Bundle 78] implies that the last “NHS Newham contract payment” was made in week ending 5 January 2020. (In any event, the Claimant has not provided evidence of any later payment). January 2020 to February 2020

[59]The Claimant was not working (whether under a contract of employment, or at all) for any NHS body during January 2020 or during February 2020 (at least, not prior to 27 February 2020, which will be discussed further in the analysis section of these reasons). Hungerford Surgery. 27 February 2020 until later than August 2023

[60]In February 2020 the claimant entered into a contract with time to talk West Berkshire charity number 115 5235 (“the Charity”). The contract described the Charity as “Client” and It described the claimant as “Contractor”.60.1 It defined “Business of the Client” as providing a counselling service free at the point of delivery, for young people aged 11 to 25 who are resident in education, training, working or registered with a GP in West Berkshire. The counselling is provided from the Client's premises in Newbury, at some schools and through other outreach work, and the Client also provides and runs courses.

60.2 The contract specified a commencement date of 27 February 2020.

60.3 The contract defined “Services” as: 14 of 34 the services provided by the Contractor in a contracting or consultancy capacity for the Client as more particularly described in the Schedule of Services.

60.4 Paragraph 3 of the agreement [Bundle 28] specified the claimant’s duties and obligations. At paragraph 3.2 the claimant agreed to attend the service every week at the agreed time and was required to obtain advance permission for absence

60.5 The Claimant was required by paragraph 3.3 to inform the client if they could not work due to illness or injury. At paragraph 3.6 the Claimant agreed to comply with all the clients policies as well as at paragraph 3.5 to comply with health and safety procedures.

60.6 Clause 4 dealt with fees which were payable by invoice the claimant to the charity and clause 5 specified that the Claimant could separately claim for expenses.

60.7 Clause 6 specified that the claimant was free to engage in other activities but stated that the Claimant must give priority to the provision of the services to the client

60.8 Clause 9 required the Claimant to have insurance it also required the Claimant to prove this to the client on demand and to ensure that the client’s interest was noted by the insurance company

60.9 Clause 10 dealt with the circumstances in which the agreement might be terminated and clause 12 specified 12. Status

12.1 The relationship of the Contractor to the Client will be that of an independent contractor and nothing in this agreement shall render her an employee, worker, agent or partner of the Client and the Contractor shall not hold herself out as such. The Contractor is engaged by the Client on a self-employed basis.

12.2 This agreement constitutes a contract for the provision of services and not a contract of employment and accordingly the Contractor shall be fully responsible for and shall indemnify the Client for and in respect of: ….

60.10 Paragraph 14 specified that the written documents constituted the entire agreement between the parties

60.11 The appendix was a schedule of services. It stated that these were delivering of counselling services at Hungerford GP surgery (“the Surgery”) on Thursday evenings. These were for a total of two hours counselling and one hour administration or assessments per week.

[61]In the written witness statement, the Claimant stated: 15 of 34 The claimant can confirm that they were appointed on the 27th of February 2020 to the current day, as an Integrative Counsellor, providing a service to Children and Young People, at The Hungerford Surgery, The Croft, Hungerford, RG170HY. The claimant is in a part-time, self-employed contractor arrangement via the charity Time to Talk West Berkshire. The claimant is contracted to provide a service to GP registered, NHS patients only. The employment contract forms part of the bundle evidence including a reference by the Hungerford Practice Manager Mike Hall, who confirmed the claimant’s length of service with the Practice Team. This service has run concurrently, with the claimants other NHS employment roles, for the past four years, without any break in service. The continuation of this role was a condition raised at point of job interview and on accepting the RBFT employment contract.

[62]Notably, within the same paragraph there is reference to both “self-employed contractor arrangement” and also “employment contract”

[63]In cross examination, the claimant asserted that they were not claiming that this document amounted to a contract of employment between the Claimant and the Charity. The Claimant’s argument is that it amounts to a contract of employment between the Claimant and the Surgery and furthermore that it, therefore, amounts to a contract of employment with an NHS body.

[64]This contract had not come to an end by the time the claim was presented on 11 October 2023. In other words it was not ended by the Respondent’s decision to terminate the contract of employment between it and the Claimant.

[65]My finding is that while it is true that the Respondent was aware that the Claimant was doing clinical work on Thursday afternoons, and aware that the Claimant would not be working for the Respondent on Thursday afternoons, and agreed to that state of affairs, the Respondent did not make any decision about the status of the arrangements by which the Claimant did work at Hungerford Surgery, for the purposes of assessing any statutory or contractual rights which the Claimant had. July 2020 to July 2021. Health Education England

[66]The Claimant started working, under a contract of employment, with Health Education England on 13 July 2020, following confirmation, on 8 July 2020, that the provisional offer was confirmed. [Bundle 74].

[67]The contract was a one year fixed-term contract from 13 July 2020 to 12 July 2021. [Bundle 75]. The contract did not specify whether the Claimant did, or did not, in that employer’s opinion have any previous continuous employment. The Claimant’s job title was Workforce Transformation Lead Primary and Community Care. The Claimant’s employment with that entity did in fact end on 12 July 2021. That is, there was no re-engagement or renewal. 16 of 34

[68]The work was full-time, at 37.5 hours per week. [Bundle 76]. The working week contained normal hours, to be worked between Monday and Friday, but were not the same each day. July to September 2021

[69]The Claimant’s contract with Health Education England ended on Monday 12 July 2021. So the Claimant had a contract of employment during the week which ended on Saturday 17 July 2021.

[70]The Claimant had no contract (other than in connection with the arrangements to work at Hungerford Surgery) during week from Sunday 18 July 2021 to Saturday 24 July 2021. The same is true of the following week, which ended Saturday 31 July 2021.

[71]On Tuesday 3 August 2021, the Claimant had an interview in connection with work which NHS North East London Clinical Commissiong Group (“the CCG”) required.

[72]In their witness statement, and some of the documents prepared by the Claimant for this hearing, the Claimant has asserted that their arrangements with the CCG commenced from 3 August 2021.

[73]However, the Claimant’s letter to Northeast London Integrated Care Board (“the ICB”) dated 4 June 2024 [Bundle 47] stated: Mr Peter McDonnell recruited me via the Venn group (recruitment agency) for the interim contractor post, Head of Integrated Commissioning on the 3rd of August 2021. Where the following week, I commenced my contract beginning with Mandatory and Statutory Training. This time-frame composed part of my contract, up until which you have dated as commencing on 14th February 2022. I can confirm during contractual changes, there were no breaks taken. This mandatory training means the effective start date was actually the 9th of August 2021

[74]The letter was written after the hearing before EJ Shrimplin, and, on its face, made clear that it was written with this litigation in mind.

[75]Thus, even within that letter, the Claimant was not asserting that “employment” (using the word loosely) with the CCG had started on the same day as the interview, but rather was pointing to the following Monday, 9 August 2021, as the alleged start of “employment” (using the word loosely) with the CCG.

[76]The Claimant has supplied a one page extract (page 13 of 14) of a document [Bundle 38]. My finding is that this is an extract from an agreement between the Claimant and the “Venn Agency”. (I am taking this name from paragraph 13 of the Claimant’s witness statement; elsewhere there is reference to “Venn Group”, but the exact name does not matter). 17 of 34

[77]When writing to the ICB on 17 June 2024 [Bundle 51], the Claimant stated: You have confirmed the 'unpaid' expectation of me completing Mandatory and Statutory Training ahead of My contract start date in the August 2021. For this reason, when my Venn agency contract continued on, with no break, in the format of a Fixed Term contract, which commenced on the 14th of February 2022, I was already in compliance, of which was a benefit to NEL.

[78]In other words, the letter referred to an “agency contract”.

[79]My finding is that the Claimant started doing work for the CCG on 6 September 2021. Payments were being made by the CCG to Venn, and by Venn to the Claimant. The agreement between the Claimant and Venn (of which [Bundle 38] is a brief extract) required them to work 37.5 hours per week for the CCG. My inference is that the word “Client” was used to describe the CCG because it was Venn’s “Client”, not the Claimant’s “Client”, although I am aware that the definition was not contained in pages included in the bundle.

[80]There is a “certificate of completion” on [Bundle 40]. The Claimant’s recollection is that this training took place throughout the period 3 August 2021 (or 9 August 2021) to 6 September 2021 (or later). My finding is that that recollection is incorrect. My finding is that these were short training courses, done on-line, with each on starting and finishing on the date listed in the “date of completion” column. So they were all started and finished respectively on 6 September, 8 September and 9 September 2021.

[81]The Claimant’s argument is that this was “unpaid” compliance work,81.1 The Claimant was asserting to me that they did the training between 3 August and 9 September 2021, and the “unpaid” portion was therefore 3 August to 5 September 2021. I agree that the Claimant was not paid in that period; however, as mentioned, my finding is that the Claimant was not doing the training mentioned on [Bundle 40] in that period.

81.2 I do not think the Claimant is necessarily asserting that 6 September, 8 September and 9 September 2021 were unpaid. However, even if that is the assertion I do not think that it would assist the Claimant. The Claimant being paid to do that training (with the CCG paying Venn, and Venn paying the Claimant for it) is of greater assistance to the Claimant’s case.

81.3 In any event, regardless of which days/hours the Claimant was paid for in the week which included Monday 6 September 2021, I am satisfied by the evidence that there were arrangements in place for the Claimant to start doing work for the CCG in the week of Monday 6 September 2021 (but not earlier than 6 September 2021). 18 of 34

[82]In paragraph 13 of the Claimant’s statement, they described the arrangements as: The claimant was appointed between the 3rd of August 2021 and the 13th of February 2022, as the Head of Integrated Commissioning, at Barking, Havering and Redbridge Clinical Commissioning Group (BHR CCG), North House, St Edwards Way, Romford, Essex, RM1 3PP. They were in a full-time, self-employed, contractor arrangement via the Venn Agency. During this period, the claimant completed both paid and unpaid work. For instance between 9th August 2021 and the 20th of August 2021, they completed their unpaid, compliance Mandatory and Statutory Training (MAST), ahead of equipment being made available in the week of the 20th of August 2021.

[83]In cross-examination, the Claimant stated that the reference to “self-employed contractor” was because they regarded Venn as an umbrella company, and that this arrangement was not inconsistent with the argument that there was actually a contract of employment between the Claimant and the CCG.

[84]The paragraph continued: This organisation is now known as the Northeast London (NEL) Integrated Care Board (ICB); formed out of a merger acquisition involving BHR CCG. NEL ICB confirmed in writing on the 10th of June 2024, that there was an expectation that all compliance training needed to be completed ahead of the employment start date. The BHR CCG employment contract, and the compliance evidence forms part of the bundle [38-40]

[85]My finding is that the Claimant has misinterpreted the ICB’s reply of 7 June 2024 [Bundle 49]. The letter makes no express comment or admission about any training the Claimant was actually doing, in any period, or about the reasons for that training. It made a general comment that evidence of particular training having been completed was sometimes necessary (and was sometimes something which an agency might ensure was all in order) before an assignment commenced. It said that, in the Claimant’s case, whether they had done such training or not, it did not change the ICB’s opinion that the Claimant’s continuity of employment with it had started 14 February 2022. The point the ICB was making in that letter was that (according to it) none of the period prior to 14 February 2022 counted, regardless of whether the Claimant was doing training, or doing work for the CCG. 6 September 2021 to 13 February 2022 (with the CCG)

[86]The arrangements that were entered into, which commenced on 6 September 2021, involving the Claimant, Venn Agency and the CCG continued until 13 February 2022. The Claimant was doing work for the CCG throughout that period, without a break.

[87]The “work services” being performed by the Claimant were: “To work as Senior Programme Manager - Planned Care, or any other work as required by the Client from time to time”. 19 of 34 14 February 2022

[88]As shown by the document on [Bundle 41] (which, again, is a one page extract from a longer item, with the remaining pages not included in the bundle), the Claimant entered into a contract of employment. It was, as the Claimant, accepted in cross-examination, for a fixed term (with 26 September 2022 being the end date stated on the face of the document).

[89]In cross-examination, the Claimant said that this was a “different type of contract”, and I will address that in the analysis below. However, to the extent that the Claimant invites me to find that the only difference is that this was fixed-term, the agreement with Venn, according to [Bundle 38] specified: Assignment Term From 6 September 2021 (Commencement Date) To 13 February 2022 Subject to earlier termination in accordance with this agreement Thus, whatever the nature of the arrangements involving the Claimant, Venn and the CCG, from 6 September 2021 to 13 February 2022, they had also had an end date specified from the outset.

[90]Furthermore, to the extent that the Claimant suggests that the only reason for issuing this document (stated to have been issued on 24 March 2022, on [Bundle 41], but I have no signature pages) was because of an NHS reorganisation which led to Clinical Commissioning Groups being replaced by Integrated Care Boards, my finding of fact is that that is incorrect. The two parties to this agreement were the Claimant and the CCG. Had this document been connected with the creation of Integrated Care Boards, it would have specified that the ICB, not the CCG, was the Claimant’s employer.

[91]On the only page of the document that has been supplied, it is stated that the post title is “Head of Integrated Commissioning” and commencement in that post was 14 February 2022. Further down the page, clause 2 states: 2. COMMENCEMENT OF CONTINUOUS EMPLOYMENT For the purposes of the Employment Rights Act 1996 ("the ERA ") only employment within CCG, or its predecessors for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006, may count as continuous employment. The date on which this statutory continuous employment is deemed to have started in your case is 14 February 2022. If exceptionally you have any additional entitlement this will have been notified to you separately in writing. No other employment with another employer shall count as a period of continuous employment under the ERA.

[92]Conceivably there might have been other clauses elsewhere in the document, dealing with what previous periods of employment (if any) might count for other 20 of 34 purposes (such as contractual entitlements, for example). However, the Claimant did not include any other parts of the document in the hearing bundle.

[93]It is ultimately a question of law, which I need to decide, whether the Claimant did, or did not, have a period of continuous employment with the CCG immediately prior to 14 February 2022.

[94]However, at the time CCG clearly stated its opinion that there was no prior continuity and the Claimant did not assert either that the period from 6 September 2021 onwards had been governed by a contract of employment, or that there was a period from 3 August, or 9 August 2021, onwards which should count towards a period of continuous employment. [Again, and for avoidance of doubt, I am not suggesting that this is somehow fatal to the Claimant’s case. An employee is under no obligation to assert what the correct period of continuous employment is, and a document which purports to assert a shorter period of continuous employment is of no effect if, as a matter of law, the period is actually longer. I am simply making a finding that, regardless of the reason, the Claimant entered into a written agreement with the CCG which included Clause 2 as cited above, and did not dispute the accuracy at the time.]

[95]I am willing to take judicial notice of the contents of paragraph 1.5.1 of the ICB’s constitution which reads The ICB was established on 1 July 2022 by The Integrated Care Boards (Establishment) Order 2022, which made provision for its Constitution by reference to this document https://northeastlondon.icb.nhs.uk/wp-content/uploads/2023/11/NHS-North-EastLondon-ICB-Constitution-v1.3.pdf.

[96]Neither party alleges that the Claimant’s period of continuous employment was broken when the Claimant’s employer changed from being the CCG to being the ICB and both parties agree that the employer did, in fact, change from being the CCG to being the ICB.

[97]The reason that I am willing to take judicial notice of the date of creation of ICB is that neither side led evidence about it, but the Claimant’s argument is that the 14 February 2022 contract was simply because of the change from the CCG to the ICB. 97.1 I reject that argument in any event. Even if I do not take judicial notice of the date of creation of ICB and make no particular finding about the date on which change of employer from CCG to ICB occurred97.1.1 The change occurred some time after 14 February 2022 (or indeed after 24 March 2022) because the contract of employment, commencing 14 21 of 34 February, was initially with the CCG (and was apparently issued to the Claimant on or around 24 March 2022).

97.1.2 The change occurred on or before 20 September 2022, because on that date, the ICB wrote to the Claimant [Bundle 42] to extend the contract to cover the period 27 September 2022 to 31 October 2022. 14 February 2022 to November / December 2022

[98]Up to late 2022, the Claimant continued working for North East London Integrated Care Board (“the ICB”). The fixed term contract was extended/renewed from 1 November 2022 to 31 December 2022. The letter confirming this is [Bundle 43].

[99]The exact date on which the Claimant’s employment with the ICB ceased is disputed between the parties.99.1 The Respondent is willing to concede that the circumstances are such that if there was a gap between the end of the claimant’s contract with the ICB and the start of the contract with the Respondent then it would not break a period of continuous employment that had already started.

99.2 It is the claimant’s case that there was no such gap and that in fact they were still doing work for the ICB after 5 December 2022 ceasing some later date in December 2022.

99.3 Notwithstanding the respondent’s concession, since continuous employment is a statutory construct, it falls to the employment tribunal to decide it as a question of law, rather than on the basis of concession or agreements between the parties.

[100]My finding is that the claimant was not still working under any contract for the ICB any later than 2 December 2022.100.1 The contract with the ICB had already ceased before they started work for the Respondent.

100.2 The Claimant refers to some correspondence they had with the ICB in December 2022 and assistance which the Claimant gave to various individuals in that month. The Claimant was not being paid for this, but argues that this was unpaid work under a contract of employment. I reject that. What the Claimant described is perfectly consistent with an employment contract having ended. Sometimes a former employer will ask some routine questions about work which a former employee had done as part of its handover arrangements. Of course, it is true that there was the opportunity to ask the questions before the contract ended, but asking questions after the end of the contract can also happen, and is not inconsistent with an argument by the employer that the contract had 22 of 34 already terminated. Similarly, former colleagues might send updates, or thanks, or queries to a departed employee.

100.3 By letter dated 30 May 2024 [Bundle 45], the ICB wrote to the Claimant in the knowledge that the contents of the letter might be relied upon in these employment tribunal proceedings. I am satisfied, I can rely on contents as being truthful to the best of the author’s knowledge. The author was a senior employee within human resources and the letter referred to documents that were contemporaneous with the end of the Claimant’s employment with the ICB and to enquiries made of the claimant’s previous line manager (who was copied in).

100.4 I am satisfied that the Claimant submitted a resignation on 8 November 2022 which stated that final day of employment would be Friday, 25 November 2022.

100.5 The Claimant and the line manager (Pete McDonnell) completed a Leavers Form together on 14 November 2022. I accept that Document 32 [Bundle 58] is an accurate copy of “Version of Claimants Leavers form sent to themselves as of 21 November 2022”. The document stated “last working day: 2.12.2022”. It also gave the same date as last day of service for pensionable pay. (The part which says “termination dates 2 November 2020” is either a typo or is referring to something different; an old version of the document was seemingly used and hence “Redbridge CCG” is used as “organisation name”.)

100.6 Although a unilateral decision by Pete McDonnell and/or the ICB to (purport to) extend the Claimant’s contract of employment from 25 November to 2 December would be ineffective, based on the evidence of the leaving form, and the Claimant’s interpretation/recollection of what was said and done, my finding of fact is that the Claimant and Pete McDonnell mutually agreed to a different leaving date than that stated in the Claimant’s resignation letter. They agreed that the Claimant’s last day actually attending work would be in the work week ending Friday 25 November 2022, but the following work week would be treated the Claimant using up annual leave, and so the last day of employment was to be treated as Friday 2 December 2022.

100.7 I take into account that the ICB has a different view, and that Pete McDonnell’s genuine recollection is that the version of the leaving form which the Claimant has relied on was actually the draft and that, at the meeting, the Claimant wanted the leaving date to be 25 November 2022 and wanted to be paid in lieu of holiday entitlement, and signed a version which gave 25 November as the leaving date.

100.8 If I understand correctly, the representation in the Claimant’s evidence (oral, written witness statement, and commentary written in the bundle when explaining what each document is) is that the Word document that was attached 23 of 34 to Pete McDonnell’s email to the Claimant of 23 November 2022 at 10:57 is the same document that

(a) appears at [Bundle 33] and

(b) is the same one relied on by the ICB as the evidence for the Claimant having agreed to change the Leaver’s Form to one which gave 25 November as the last day of employment. There might be an error in the compilation of the bundle, because there is no signature from the Claimant on [Bundle 67]. Alternatively, the ICB might be wrong to say that the Claimant ever signed a document with 25 November as the last day of employment. Either way, I will accept the Claimant’s evidence on oath to the effect that the Claimant and ICB agreed leaving date of 2 December 2022 and that the Claimant never agreed to vary that (back to) 25 November 2022 (the date originally stated in the resignation email).

[101]However, even if I am wrong about the last day on which the contract of employment between the Claimant and the ICB ended (my decision being that it was Friday 2 December 2022), the basis of the Respondent’s concession that continuity was not broken is that the ICB’s 30 May 2024 letter states: Payroll confirmed they extended your last day of service to Sunday 27 November 2022, as they should when someone leaves to join another organisation and the last working day is a Friday (25 November 2022).

[102]I will discuss the significance of that paragraph in the analysis below. However, my finding of fact is that the ICB did actually have a policy to use a Sunday leaving date in circumstances in which the person who was leaving left on a Friday and it was believed that they were joining another NHS body. Employment with the Respondent

[103]At [Bundle 163], there is an extract from the claimants statement of main terms and conditions of employment.103.1 This states “Post Title: Head of Programme Delivery - Building Berkshire Together”

103.2 It states start date 5 December 2022; it states continuous service in NHS from 1 January 2002

103.3 It is signed on behalf of the employer on 6 December 2022, and also signed by the claimants (signature undated).

103.4 Above the signature, there is a heading “acceptance” and a statement that the document contains an offer and will become the claimant’s contract of employment if accepted on the terms specified, and that signature would confirm acceptance.

[104]It seems that [Bundle 163 to 173] are pages 2 to 12 of a 12 page document. Page 1 appears to be missing, and I infer it was simply a title page. I am unclear if any 24 of 34 paragraphs are missing between the bottom of [Bundle 164] and the top of [Bundle 165], but I infer there is nothing significant, for the issues which I have to decide, missing.

[105]There is agreement between the parties that this is a contract of employment and that the claimant’s first day working under this particular contract was Monday, 5 December 2022.

[106]This particular contract of employment continued without a break until the claimant was dismissed. There is a dispute between the parties about the reason for the dismissal.106.1 In their witness statement, the Claimant refers to an email dated 3 August 2023 which is alleged to be evidence that the decision to dismiss had been made by that date.

106.2 I do not need to make any decisions about the reason for the dismissal or about when the respondent decided to do it. However on Tuesday, 8 August 2023, a meeting took place in the Claimant’s absence, and, at the latest, that is when the decision that the claimant was going to be dismissed was made/finalised.

106.3 The same day there was an email sent at 18:05 as per [Bundle 174]. It attached the letter which appears at [Bundle 175]. The letter informed the claimant that they were dismissed with immediate effect and that there would be a payment in lieu of notice and payment in lieu holiday entitlement.

106.4 The claimant was aware - on 8 August 2023 – that the Respondent’s position was that it had dismissed the Claimant with immediate effect. Analysis and conclusions

Introduction

[107]This hearing was only to decide on a “yes” or “no” basis whether the Claimant had a qualifying period of employment. The preliminary issue did not require me to decide, if the answer was “yes”, how long the period of employment was.

[108]Although the Claimant had referred, in the previous hearing, to gaps in employment (that is, weeks not governed by contract of employment) due to illhealth [which, if proven, might therefore fall within section 212(3)(a)], the most recent period alleged in evidence was 29 December 2017 to 2 March 2018.

[109]In reality, the arguments raised issues under each of section 212(1) and 212(3), as well as each sub-paragraph of section 212(3). It was necessary to potentially look further back than just as far as August 2021 in order to put some of those arguments in context. 25 of 34

[110]However, an overarching submission was that I should decide that, because of the work at Hungerford GP Surgery (“the Surgery”), I should decide that continuous employment started from no later than 27 February 2020 (and therefore decide the preliminary issue in the Claimant’s favour).

[111]The sub-issues raised by the preliminary issue included:111.1 For each period of work, relied on by the Claimant, was that work done under a contract of employment or not.

111.2 For each period of work, relied on by the Claimant, was it “relevant employment” within the meaning of Section 218(8) to 218(10) ERA.

111.3 For each successive period of work, relied on by the Claimant, was continuity of employment, for Part XI purposes, preserved by the effects of the 1996 Order.

111.4 For any period in which the Claimant was not employed under a contract of employment, is it true that the Claimant was “incapable of work in consequence of sickness or injury” in that period?111.4.1 If so, between which specific dates?

111.4.2 Did the period of incapability cover the whole period between contracts? If not, did it do so when combined with the next exception mentioned below?

111.5 For any period in which the Claimant was not employed under a contract of employment, is it true that, at the time of the absence (including at the start of it), the circumstances were such that, by arrangement or custom, the Claimant was regarded as continuing in the employment of the employer?111.5.1 If so, between which specific dates?

111.5.2 Did the period for which there was such an arrangement or custom cover the whole period between contracts? If not, did it do so when combined with a period of incapability mentioned above?

111.6 Alternatively, for the periods in which the Claimant was not in “relevant employment” is it true that, when looking back, there was no break in continuous employment because the interval between successive contracts of “relevant employment” was a period in which the Claimant was absent from work on account of a temporary cessation of work. Relevant Date

[112]I will have to decide the “relevant date”. This is because the “relevant date” is used when deciding whether the Claimant had two years’ continuous employment. (Section 155 ERA). 26 of 34112.1 At the hearing, the parties were in agreement that it was 15 August 2023, but that is on the basis of the Claimant’s right to minimum notice (section 86 ERA) being for one week’s notice (from 9 to 15 August 2023 inclusive).

112.2 However, if the Claimant’s period of continuous employment exceeds two years, then section 86 would mean that the “relevant date” would fall two (or more) weeks after 8 August 2023. Put another way, the one week addition to 8 August 2023 is correct if and only if, the Claimant’s period of continuous employment exceeded one month (as both parties agree it did, and as I find that it did) but did not reach two years.

112.3 On the Claimant’s case, as per discussions at the outset of the hearing, and closing submissions, continuous employment commenced no later than 27 February 2020. If that date is correct then, by 8 August 2023, there would be three complete years, and the notice required by section 86 ERA would be 3 weeks. That would mean the relevant date was 29 August 2023.

112.4 All that being said, while I have to make a decision about the “relevant date”, the date at which the Claimant’s rights under section 86 ERA are assessed is 8 August 2023. For the Claimant to have the right to 2 (or more) weeks’ notice, the Claimant would have had to start continuous employment from no later than 9 August 2021 (or no later than 9 August 2020).

[113]Having established the relevant date, it is straightforward to determine the two year period ending with that date. For example, if the “relevant date” is 15 August 2023, the Claimant will have the qualifying period required by Section 155 ERA, if their continuous employment commenced no later than 16 August 2021.

[114]So the Claimant would succeed on the preliminary issue if they had continuous employment through the period 16 August 2021 to 15 August 2023 (if the parties are correct about the relevant date) and the Respondent could succeed if the start of their continuous employment was on or after 17 August 2021. Summary of my eventual conclusions (reached after the analysis set out below)

[115]For the reasons stated in the findings of fact, and in the analysis below, my decision is that the Claimant commenced a period of continuous employment on 14 February 2022 (not earlier).115.1 By 8 August 2023, that period had lasted for more than one year (but less than two years), and the Claimant was entitled to one week’s notice of dismissal (section 86 ERA).

115.2 The contract of employment was effectively terminated by the Respondent on 8 August 2023, by the Respondent informing the Claimant of a dismissal with immediate effect. 27 of 34

115.3 The relevant date is not 8 August 2023. However, 8 August 2023 is the “material date” as defined by Section 155(6) ERA. By virtue of Section 155(5) ERA, the “relevant date” is therefore 15 August 2023.

[116]As of the “relevant date”, the Claimant’s period of continuous employment was 14 February 2022 to 15 August 2023.116.1 Therefore, the Claimant did not have the qualifying period of employment required by Section 155.

116.2 Therefore, the decision on a reference to the Tribunal under Section 163(1) ERA is that the Claimant has no entitlement (under Part XI ERA) to any redundancy payment.

116.3 It follows from that decision that no order under section 163(5) can be made.

[117]Nothing in the preceding paragraph contains any decisions about whether the Claimant is, or is not, entitled to any contractual redundancy payment.117.1 That was not a preliminary issue to be determined at this hearing.

117.2 I have taken into account the extract from Agenda for Change and the parties submissions about it, but do not need to make any comments about it to explain my decisions on the preliminary issue.

117.3 However, the decision that the Claimant did not have two years’ employment (for Part XI purposes) is final (subject to reconsideration or appeal) and so if the contractual argument was based on having two years’ employment, as defined by Section 155 ERA (and the other legislation cross-referenced by the definitions it uses) then it will fail. Change of Employer from the ICB to the Respondent, in late 2022

[118]This is a change of employer in circumstances covered by the 1993 order. Each of the ICB and the Respondent are employers listed in Schedule 1 of the order. The Claimant had a contract of employment with each of them. The Claimant had agreed to become an employee of the Respondent’s before their contract of employment with the ICB had ended, and the interval was not to exceed 4 weeks.

[119]This would all be true even if, as the ICB has asserted, the contract of employment between the Claimant and the ICB ended on 25 November 2022. For completeness, however:119.1 For the period at the end of November 2022 and start of December 2022 (going from the ICB to the Respondent) based on my findings, there is no one week gap. The contract with the ICB ended on Friday 2 December 2022 and the one with the Respondent commenced on Monday 5 December 2022. 28 of 34

119.2 However, if I am wrong in my findings about what the Claimant and Mr McDonnell actually agreed, and wrong to think that the combined effects of the 1993 Order, section 138(1) ERA and section 213(2) ERA preserve continuous employment, then I am satisfied that the ICB regarded the period from last day of employment to Sunday 28 November 2022 as being “by arrangement or custom” a period in which the Claimant was regarded as being in continuing employment between one NHS employer and another. So the week of 28 November to 3 December would be saved by section 212(3)(c) if I was wrong to decide that it actually fell within section 212(1).

119.3 In any event, there is no break in continuity and the week commencing Sunday 28 November 2022 counts towards the period of employment.

[120]My comments addressing the periods prior to 14 February 2022 are as follows. Work at Hungerford GP Surgery

[121]The Claimant argues that they were an employee of Hungerford GP Surgery (“the Surgery”) from 27 February 2020 onwards (until the date the claim was presented).121.1 To the extent that it is the Claimant’s argument that they had a contract of employment such that the Claimant was “employee” and the Surgery was “employer”, the Surgery is not a “health service employer” as listed in Section 218(10) ERA. It is also not an employer listed in Schedule 1 of the 1993 Order. Thus, a period in which the Surgery was the Claimant’s employer would not, in any event, fall within the exception to the general rule [section 218(1) ERA] that only employment with the Respondent would count towards continuous employment (as defined in Chapter I of Part XIV ERA).

121.2 Secondly, there is no necessity to imply any contract directly between the Claimant and the Surgery. The Claimant’s work for the Surgery (the fact that the Claimant was obliged to attend, the fact that the Claimant was paid for the work by the Charity, the fact that the Claimant saw NHS patients referred by the surgery) is fully explained by the existence of the Claimant’s contract with the Charity and the Charity’s arrangements with the Surgery. Since there is no contract between the Claimant and the Surgery, the question of whether such a contract is/was a contract of employment does not arise.

121.3 A “contract of employment” (if any) between the Claimant and the Charity would not provide the Claimant with any period of continuous employment to be added to the employment the Claimant otherwise has with the Respondent. The Charity is not one of the bodies listed in section 218(10) ERA or in the 1993 Order. I therefore do not consider it to be necessary to decide whether the contract between the Claimant and the Charity is a contract of employment or not. I merely observe that the Claimant did not argue that it was (albeit that 29 of 34 would not have been conclusive of the point, had I thought it necessary to make a decision).

121.4 I do not consider the work which the Claimant did at the Surgery to be “relevant employment” as defined in Section 218(9) and the 1996 Order. Arrangements with the CCG and the ICB

[122]The Claimant argues that between 6 September 2021 and 13 February 2022, they were an employee of North East London CCG (“the CCG”). However, there was no written contract between those parties for that period. There was a written contract between the Claimant and Venn (discussed in the findings of fact). This was an agreement which represented the true intentions of the parties. The actual intentions were that the Claimant would provide “Work Services” as defined in the contract to the “client” of Venn (that is, to the CCG) and would be paid by Venn for doing that work. The Claimant is an intelligent professional person, and has significant experience in managerial roles (as well as clinical roles) - as the documents the Claimant has included in the bundle, and the comments in the Claimant’s witness statement, make clear. The Claimant knew what they were signing. They knew what the arrangements were. They knew that sometimes CCGs (and other NHS bodies) contract directly with employees and sometimes there is an agency or other intermediary. The Claimant’s own correspondence makes clear that the Claimant knew that, on this occasion, that the CCG had decided to use an agency. Venn arranged the interview for the Claimant, and Venn supplied the Claimant to work for the CCG. There is no evidence, in my judgment, that these contractual arrangements were anything other than that which they appeared to be on the surface. It is not the case that the true agreement between the parties – as properly understood and interpreted – was that the Claimant was to be a direct employee of the CCG. Nor is it true that it is necessary to imply a contract in order to give “business reality” to the situation; the actual express agreements fully explained why the parties acted the way that they did.

[123]There was no direct contract between the Claimant and the CCG, express or implied, from 6 September 2021 (before 14 February 2022).

[124]The same is true of the period immediately before 6 September 2021.124.1 The Claimant did do training, and received certificates. As mentioned in the findings of fact, I reject the argument – on the facts – that the training started on 9 August 2021.

124.2 As a matter of law, I also reject the argument that, even if the CCG had a requirement that the Claimant complete certain training, before the Claimant could be assigned by Venn to work for it, then that implied any contract between the Claimant and the CCG for the time that the Claimant was undertaking the training. 30 of 34

124.3 The training listed on the certificate from “Healthier Business Group – The Compliance Experts” is not, in my assessment, training of the type – or for the roles – mentioned in the 1996 Order. I therefore do not think it counts at all, for any period of time, as meeting the requirements of section 218(8) and (9).

124.4 Further, given my findings that there was no contract (of employment, or at all) between the Claimant and the CCG on the dates 6 to 9 September 2021, then this period of training would not fall within Section 218(8) in any event.

124.5 Nor is it true that the Claimant had, immediately prior to 6 September 2021, been in “relevant employment by a health service employer”. Contracts of Employment / Relevant Employment

[125]In the findings of fact, I set out which organisations the Claimant had worked for starting from October 2016. Because of my conclusions in relation to the period October 2016 to August 2023, it was not necessary for me to go back any further than that in order to decide the preliminary issue.

[126]In the findings of fact, I set out which organisations the Claimant worked for – and for which periods – under a contract of employment.

[127]I also set out which work was performed based on contractual arrangements which purported to be via an agency or other intermediary. For reasons similar to those which I set out in more detail when addressing the period 6 September 2021 to 13 February 2022, I am not satisfied that, during any those periods, the Claimant had any direct contract (express or implied) with the health organisation in question. Instead, the Claimant had contractual arrangements with an agency or intermediary, and so did the health organisation in question.

[128]I am satisfied that each of:128.1 West Hampshire CCG

128.2 Surrey Downs CCG

128.3 Newham CCG

128.4 NHS North East London Clinical Commissiong Group (“the CCG”)

128.5 Northeast London Integrated Care Board (“the ICB”)

128.6 The Respondent are each bodies that fall within the definition in section 218(10) ERA and Schedule 1 of the 1993 Order. 31 of 34

[129]Even on the assumption that Health Education England is also included, I am not satisfied that the Claimant was engaged in “relevant employment” – as defined in section 218(8) to (10) ERA when doing work for those organisations.129.1 Even ignoring the point that about there being no contract of employment for some of the periods, the work would have to be that of: registered medical practitioner or registered dental practitioner in the grade of Registrar, Senior Registrar, Specialist Registrar, Registrar (Public Health), Senior Registrar (Public Health) and Specialist Registrar (Public Health); in the grade of clinical scientist trainee or clinical psychology trainee; or in the grade of general management training scheme trainee or financial management training scheme trainee.

129.2 The Claimant was not performing work of that type, and simply being employed by the relevant body is not sufficient, for section 218 purposes: Winchester and Eastleigh Healthcare NHS Trust v Walker EAT 0048/11.

[130]Furthermore, there are gaps such that the 1993 Order cannot operate. Even ignoring my decision that the work in question was not done under a contract of employment for some of the periods, the gaps (in the period I addressed in the findings of fact) which exceeded 4 weeks were:130.1 September 2017 to March 2018

130.2 July 2019 to 14 October 2019

130.3 31 December 2019 to 13 July 2020 (because I have rejected the Claimant’s argument that the work at the Surgery counts).

130.4 12 July 2021 to 6 September 2021

[131]Thus since those gaps or intervals do not fall within the 1993 Order, they could only count towards period of continuous employment if saved by section 212(3). Section 212(3)

[132]My assessment is that the period 6 September 2021 to 13 February 2022 does not fall within sections 212(3)(a), (b) or (c).132.1 While a period of employment for another employer does not necessarily prevent an employee from relying on section 212(3)(b) to argue that their absence from employment with a respondent was an absence that was “on account of a temporary cessation of work”, that does not match the facts here. The Claimant was actually doing work (“the Work Services” defined in the contract with Venn) for an NHS body. There was not, therefore, a temporary cessation of work. Rather there was a period of doing work for an NHS body 32 of 34 but otherwise than by under a contract of employment. It is clear that this is not the type of situation which section 212(3)(b) is aimed at.

132.2 Similarly, there was no arrangement or custom (prior to 6 September 2021, or during the period to 13 February 2022) that working for the CCG as an agency worker would be regarded as being in continuing employment. Had there been such a custom or arrangement, as far as the CCG was concerned, then it would have stated an earlier start date than 14 February 2022 in the employment contract. At the time, the Claimant did not argue that there was a custom or arrangement and has not taken me to any evidence that there was.

132.3 In performing his professional obligations, Mr Rix has made sure that my attention was drawn to the fact that the contract with the Respondent did specify start of continuous employment as being in 2002. However, that contract, entered into around December 2022, does not change the fact that – in my judgment – there was no custom or arrangement at the time (at the start of, or in the early stages of the 6 September 2021 to 13 February 2022), or even immediately afterwards.

[133]My judgment is that weeks in which the Claimant was being supplied to work for an NHS body by a third party are not weeks in which the Claimant was not “absent from work on account of a temporary cessation of work”. Therefore, my assessment is that those weeks actually break continuity of employment.133.1 They do not fall within section 212(3)(a), because the Claimant was not too ill to work.

133.2 They do not fall within section 212(3)(b), because the Claimant was working, not “absent from work”.

133.3 They do not fall within section 212(3)(c), because there was no arrangement or custom that the time spent doing work for Organisation B (via an agency) would count towards continuity of employment that the Claimant had built up with an earlier employer, Organisation A

[134]In other words, my assessment is that each time worked for an NHS organisation as an agency worker, the Claimant lost any continuous employment that they had previously built up.

[135]For completeness:135.1 There is a presumption of continuity.

135.2 The most recent period to which section 212(3)(a) might arguably apply was from around 7 January 2018 (when the Claimant broke her ribs). In my assessment, and given the lack of specific medical evidence, this injury would 33 of 34 not have prevented the Claimant from performing work for more than a month, at most.

135.3 Even if I am wrong to decide that the Claimant was not in “relevant employment” when working under a contract of employment for Health Education England and (from 14 February 2022 onwards) the CCG (and wrong to think that intervening work for NHS bodies, other than under a contract of employment breaks continuity), my assessment is that the period from 13 July 2021 to 14 February 2022 is not short when compared to the contracts of employment either side of it. The gap is 7 months, compared to a contract of 12 months (July 2020 to July 2021) immediately before the interval and 18 months (February 2022 to August 2023) immediately afterwards. The interval was about 18.9% of the total period from July 2020 to August 2023).

135.4 Further, prior to the start of the July 2020 contract of employment, the Claimant had last worked under a contract of employment (for an NHS body) when the work for ended in March 2019 when the contract with Surrey Downs CCG ended. That interval is also not short. The interval was around 25% longer than the contract with Health Education England, which was the next contract of employment after it finished.

135.5 So neither section 212(3)(a) or section 212(3)(b) imply an earlier start date, for the Claimant’s continuous employment with the Respondent, than 14 February 2022, even taking account of the presumption of continuous employment. Outcome and next steps

[136]The statutory redundancy pay matter is disposed of by this judgment. The unfair dismissal claim was already dealt with. There are case management orders for the remaining claims sent in a separate document.