Employment Tribunal Qualification

Aliboon

Hello all.

I don't know if anyone can help, or knows of any examples, but I need to know what counts as being employed for a year to see whether my girlfriend is entitled to an employment tribunal.

She has worked in the NHS for 5 years, but hadn't worked for the Trust from which she was dismissed for a year.

Does that previous 5 years count (it did for her sick pay) when it comes to requesting a tribunal?

I've had a look online, asked ACAS, but nobody seems to really know as it is a bit a grey area.

The nearest I've seen to it being a yes is from the direct gov continuous employment page:

"...if you move from one employer to another 'associated' employer, meaning one of the companies is part of or related to the other company (either directly or indirectly)..."

But then on the same page it says:

"...if you are employed by the health service and you move to another health service employer while undergoing training..."

This sort of implies that continuous employment in the NHS only counts if you are doing training and moving around.

dandelionclock30

An employment law solicitor will be able to tell you.

KiKi

dandelionclock30 wrote: »

An employment law solicitor will be able to tell you.

Or someone on this site - just like all the other issues posted here.

I can't help you, OP, but hopefully someone will be along soon who will.

KiKi

ohreally

Read through sec 12 of her terms & conditions handbook.

Ask trade union for advice/ opinion.

Aliboon

I've read through everything, the handbook only says about sick pay, redundancy, holiday entitlement etc, but nothing about tribunal qualifications.

Unfortunately she wasn't in a Union, if she was I very much doubt they would have dismissed her... My Union states it only helps with my issues, although it couldn't do any harm to give them a call.

Aliboon

She received full sick pay for 6 months, which is I think the maximum. An NHS employee is entitled to that after 5 years. So according to the actions of the NHS trust, it is provable that she had 5 years qualifying service.

Annisele

Aliboon wrote: »

She received full sick pay for 6 months, which is I think the maximum. An NHS employee is entitled to that after 5 years. So according to the actions of the NHS trust, it is provable that she had 5 years qualifying service.

I'm not at all sure that one follows from the other. She may actually have 5 years continuous service (I don't know) but the sick pay doesn't prove anything.

Where I work, our staff handbook says that you don't get occupational sick pay until you've been there a year, for the first year only statutory sick pay will be paid. However, what actually happens is that everybody gets OSP, regardless of length of service.

Bottom line is that if an employer wants to give you a benefit that's over and above what it's contractually obliged to provide, that's just fine - and it doesn't force the employer to give you more stuff in future.

Aliboon

Fair enough, whilst private companies may well pay more than what they need to under their staff handbooks, I doubt any govt organisation would.

But this isn't really the issue, she has the qualifying period if all of her continuous service is accounted for (or even just the previous job), but not if it only counts for the one NHS trust from which she was dismissed.

KiKi

Hi OP, I might have the answer for you.

This is from March 2010, but don't see any reason why it would have changed:

"In general law, continuous employment begins afresh with each change of employer whether or not there is a gap, except where this is amended by TUPE as described above, or where employers are ‘associated’ (section 231, Employment Rights Act 1996).

NHS organisations are not ‘associated’ employers but special statutory provisions for the NHS have the effect of treating them as associated employers for the purposes of redundancy payments. Therefore to qualify for redundancy compensation an employee is required to have two years' continuously-employed service with the same employer (part XI Employment Rights Act 1996) or with several NHS employers (Redundancy Payments (National Health Service) (Modification) Order 1993).

Service with a succession of different NHS employers can be counted as continuous employment for redundancy, provided that service has not been interrupted by a break of more than one week as defined by statute. For these purposes continuity is not broken unless the break exceeds one week which is a complete week ending with a Saturday (see example 3 below).

Continuous NHS service under these special provisions does not give NHS employees continuous employment for statutory employment rights other than a statutory redundancy payment. For example, such continuous service would not count towards the qualifying period for claiming unfair dismissal."

Ie, continuous service across different trusts only applies (in this example) to redundancy payments as special provisions were made. It doesn't apply to other qualifying periods, such as unfair dismissal.
http://www.nhsemployers.org/PayAndContracts/AgendaForChange/NHS-redundancy/Pages/Retirement-redundancy-pitfalls.aspx

But, I'm not a lawyer, nor am I very familiar with the NHS T&Cs. But this would seem to answer it as far as I can see.

I hope that helps you.
KiKi

Aliboon

Thanks KiKi,

It's the answer I wanted, if not the answer I wanted if you see what I mean...

I sort of thought that they unfairly dismissed her because they knew there couldn't be any comeback from an employment tribunal.

KiKi

Ooooh - interesting, OP. Case law has literally just been made on this at the EAT on 30 August this year. The outcome is thus:

"The Employment Appeal Tribunal (EAT) has confirmed that continuity of employment, for the purposes of calculating a claimant's basic award for unfair dismissal, does not arise in the NHS, where the claimant has worked for several different health service employers, unless s.218(8) of the Employment Rights Act 1996 (ERA) or the TUPE legislation applies."

Whilst this is about unfair dismissal payments (rather than taking an employer to ET in the first place), the same principal applies. If you *can* take the employer to ET, then you only get payment for the period of time in your current Trust (unless you've been TUPEd or are a trainee moving around the NHS). Therefore the continuous employment only applies to the current Trust.

(The reason it applied to her sick pay is because that's a contractual agreement, and contractual agreements override this principal.)

Sorry that's not what you want to hear, but hope it clears that up for you. As ever, though, this is what I've found on the internet, and I'm not an employment lawyer, so check it out if you need to.

KiKi