Ms B Jones v Principle Care Agency Limited — 2023

The tribunal determined a single issue: whether Ms B Jones had been employed for more than two years, or whether there had been a break in continuity of employment. It found that she started work for Principle Care Agency Limited on 27 April 2020 as a Health Care Assistant, but the contractual material showed a zero-hours, casual arrangement under terms sent after interview. Applying the statutory definition of employee and the common law tests for employment status, the tribunal found that in April and May 2020 there was not the necessary mutuality of obligation, so she was not an employee for the purpose of an ordinary unfair dismissal claim.

The tribunal also considered, in the alternative, whether any employment that existed ended when the care home was closed by Care Inspectorate Wales on or around 18 May 2020. It found that Mr Huckerby told the Claimant the care home was closing, that there was no further work for her, and that no assurance was given that work would resume. Although there was no written termination letter and no P45, the tribunal found that she should reasonably have understood that any employment had ended. The payment of £117.27 on 31 July 2020 was found to be payment for a shift and accrued holiday pay, not a retainer.

The tribunal further held that section 212(3) ERA 1996 did not preserve continuity. It found that the closure was a cessation of work, but not a temporary cessation for these purposes, and that there was no arrangement or custom under which the Claimant was regarded as continuing in employment. To return to work after reopening, she had to be interviewed and offered a new position. Even if she had been an employee in April/May 2020, the gap until her return to work on 22 December 2020 meant she did not reach two years' continuous service by the effective date of termination on 12 September 2022. The unfair dismissal claim was therefore dismissed.