Haritaki v South East England Development Agency

Factual and Procedural Background

This hearing follows an earlier hearing on 14 May 2008 concerning a dispute between Plaintiff and Defendant, trading as Company A. The matter involves two appeals: one relating to an appeal against a Registrar's refusal to extend time for an appeal on continuity of service, and another involving an application under Rule 3(10) regarding amended grounds of appeal following a judgment from 26 June 2007. The continuity appeal concerns whether the Plaintiff's employment with the Defendant was continuous for the purposes of employment rights, while the Rule 3(10) application relates to procedural issues following the Employment Judge's decision.

Legal Issues Presented

1. Whether the Plaintiff’s employment with the Defendant was continuous under s212 of the Employment Rights Act 1996, despite a break in service between July and November 2004.
2. Whether the Employment Judge erred in law by failing to properly apply the statutory continuity provisions, particularly regarding the Plaintiff’s incapacity for work due to sickness or injury during the break.
3. Whether the amended grounds of appeal under Rule 3(10) should be allowed to proceed to a full hearing.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff’s absence from work between July and November 2004 should be considered as continuous employment under s212(3)(a) ERA if he was incapable of work due to sickness or injury.
• The Employment Judge failed to ask or answer the correct legal question concerning incapacity for work during the break, thus making an error of law.
• The continuity issue should be remitted to a different Employment Tribunal for rehearing, potentially in a different venue and possibly combined with the substantive unfair dismissal hearing.

Respondent's Arguments

• The Respondent focused on the factual chronology of the Plaintiff’s employment, emphasizing the break in service and the Plaintiff’s claim for Jobseekers Allowance during that period.
• The Respondent did not address the application of s212(3)(a) ERA regarding incapacity for work.
• Regarding the Rule 3(10) application, the Respondent did not attend the hearing but submitted written arguments opposing the appeal.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by reviewing the factual findings of the Employment Judge regarding the Plaintiff’s periods of employment and breaks between March 2004 and February 2006. It identified the key legal issue as whether there was continuity of employment despite the break from mid-July to early November 2004.

The court emphasized the statutory presumption of continuity under s210(5) ERA and the importance of s212 provisions, particularly s212(3)(a), which counts weeks of incapacity for work due to sickness or injury as continuous employment.

The court found that the Employment Judge did not properly address the critical question of whether the Plaintiff was incapable of performing his work as a tree surgeon during the break. Instead, the Judge relied on the fact that the Plaintiff was living away and claiming Jobseekers Allowance, which does not answer the legal question of incapacity due to ill health.

Because of insufficient factual findings on this issue, the court concluded that the continuity question could not be decided on appeal and must be remitted for rehearing by a different Employment Tribunal. The court declined to direct the venue or the scope of the rehearing, leaving those matters to the Employment Tribunal's discretion.

Regarding the Rule 3(10) application, the court found no reasonable prospect of error of law in the Employment Judge's decision and dismissed the appeal on that point.

Holding and Implications

The court ALLOWED the appeal concerning the continuity of employment issue and REMITTED that issue to the Employment Tribunal for rehearing by a different Tribunal.

The court DISMISSED the Rule 3(10) application and the associated appeal.

The effect of this decision is that the continuity of service question remains unresolved and must be reconsidered with fresh findings of fact, particularly concerning the Plaintiff’s incapacity for work during the break. No new precedent was established beyond confirming the proper legal approach to continuity under s212 ERA.