Mr J Milne v Frimley ICB: 6010643/2024
JUDGMENT
The complaint that the claimant was unfairly dismissed is struck out.REASONS
[1]The claimant complains of unfair dismissal.[2]Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than two years service to make an unfair dismissal complaint, unless one of the specific exceptions apply.[3]The claim form implies that the claimant was employed by the respondent for less than two years (from 3 October 2022 to 30 June 2024).[4]Despite being given the opportunity to do so, the Claimant has not presented any reasonable argument that one of the exceptions apply. He merely supplied 51 pages of documentation.[5]Accordingly, the complaint of unfair dismissal is struck out. Since that was the only complaint, the entire claim has been struck out. .[6]In deciding whether or not to reconsider the judgment, the tribunal has a broad discretion, which must be exercised judicially, having regard not only to the interests of the party seeking the reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation[7]The Claimant’s 1 November 2024 application was in time, and complied with the requirements of the rules (both the 2013 and 2024 requirements).[8]The application gave reasons for not having responded to the strike out warning at the time it was sent. It also addressed the merits.[9]By letter dated 2 December 2024, the parties were notified that I had decided that the application met the requirement of having better than “no reasonable Page 2 of 5 prospects of success”. The parties were permitted to make further representations.[10]I have taken account of the Claimant’s letters of 20 December 2024 and 5 March 2025, as well as the comments made by the Respondent. I have not received any submissions following the letter sent, on my instructions, on 1 May 2025.[11]I am therefore making the decision on the papers.[12]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”.[13]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.[14]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. Page 3 of 5 (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)— ….[15]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).[16]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.[17]There are provisions for preserving continuity of employment when moving between NHS employers that apply to redundancy pay rights (Part XI ERA) that do not apply to unfair dismissal rights (Part X ERA)[18]Although the Claimant has referred to being employed by NHS for 23 years in aggregate, and refers to a gap of less than 2 years within that period (ie when not employed in NHS at all), he accepts that his employment with the entity Frimley ICB was between the dates stated in the claim form (only) and was less than two years.[19]Health authorities are not “associated employers” for the purposes of S.218(6) ERA and there does not appear to be any reasonable prospect of the Claimant using any other mechanism (within section 218 ERA or otherwise) to demonstrate that, for the purposes of Part X ERA, he had two years’ continuous employment. In particular, section 218(8) does not apply. Page 4 of 5[20]Nor do the Claimant’s arguments present any reasonable prospect that he can show that an exception to the requirements of section 108(1).[21]For those reasons, the Claimant’s application to revoke the strike out judgment is refused. Approved by: