In Lipinski v Ebbsfleet Autospray Centre Ltd the EAT ruled that an employment tribunal had made an error of law when deciding that continuity of employment had been broken during a four month gap between Lipinski’s dismissal and his reinstatement, which was negotiated as part of the settlement of his unfair dismissal claim. The Employment Protection (Continuity of Employment) Regulations 1996 (the provisions of which were previously contained in S.219(3) of the Employment Rights Act 1996, but which were repealed) applied to the situation, but had not been taken into account by the tribunal. Under the Regulations, a dismissed employee who presents a relevant tribunal complaint (which includes a claim for unfair dismissal) and is then reinstated or re-engaged as a consequence of that complaint or pursuant to Acas conciliation or a compromise/settlement agreement, is entitled to continuous employment throughout the intervening period. It did not matter that Lipinski had worked for another employer during the four month gap. The EAT therefore remitted the case to the tribunal to determine whether Lipinski had in fact been reinstated in because of his original unfair dismissal claim, or for some other reason, as there was insufficient material before the EAT to decide the point.
This case serves as a salutary lesson for employers and employment tribunals alike. Where the law is concerned the devil can sometimes be in the detail, particularly where rarely referred to pieces of legislation are involved. Employers should be mindful of the consequences of the 1996 Regulations and, where a tribunal complaint has been lodged, take legal advice when reinstating employees as a result of a successful appeal against dismissal, or a settlement to resolve the issue, otherwise there may be a poison pill that comes back to bite. It may seem odd that a person can be deemed to have continuous employment with one employer while having worked for another employer at the same time. But that is what the Regulations say, and the principle sits on all fours with the term ‘reinstatement’ since that means that the dismissal is treated as never having taken place.
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