Case 2203383/2021 · Employment Tribunal
Mr W Lautaro Ruiz Hidalgo v Britannia Services Group Limited PRELIMINARY HEARING — 2021
- Case reference
- 2203383/2021
- Decision date
- 26 November 2021
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Hopton Representation
Parties
2 namedClaimant
Mr W Lautaro Ruiz Hidalgo
Key findings
Tribunal's reasoningThis was a preliminary hearing to determine the claimant's length of service. Mr W Lautaro Ruiz Hidalgo had started work for Britannia Services Group Limited in March 2011. The dispute concerned whether his employment continued through his three-month trip to Ecuador in late 2018, or whether it ended when he left and restarted when he returned in February 2019.
The tribunal found that the claimant had been told clearly that if he took three months off, or any holiday in December, he would lose his job. It accepted that the respondent sent a letter dated 12 October 2018 refusing the request, and found that a P45 was sent on 15 November 2018 and received by the claimant through his wife by 19 November 2018. When the claimant returned to work on 4 February 2019, he was asked to complete new starter paperwork and given a new employee number. The tribunal concluded that he understood his employment was restarting rather than continuing.
Applying s.212 ERA 1996, the tribunal held that there was no contract of employment governing the relationship from 19 November 2018 to 3 February 2019 and no arrangement or custom under s.212(3)(c) to keep that period in service. It distinguished Welton v Deluxe Retail Ltd (t/a Madhouse) and accepted the respondent's evidence that the new starter process was mandatory. The tribunal rejected the claimant's case that the termination documents were retrospectively invented or that he had resigned, finding instead that receipt of the P45 was sufficient in the circumstances to amount to a termination.
On that basis, the claimant's relevant start date for the present claims was 4 February 2019 and his termination date was 24 December 2020. He therefore had one full year's service, not two years. The tribunal held that it had no jurisdiction to hear the unfair dismissal claim under s.108 ERA 1996 or the redundancy pay claim under s.155 ERA 1996, and both claims were dismissed. The notice pay claim was left to proceed to the full hearing listed for 11 and 12 January 2022.
Claims and outcomes
2 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | Dismissed for lack of jurisdiction because the tribunal found the claimant had only one year of continuous service at the effective date of termination and therefore did not satisfy the two-year qualifying period. | Dismissed | — | — |
| Redundancy | Dismissed for lack of jurisdiction because the tribunal found the claimant did not have two years' continuous employment ending with the relevant date. | Dismissed | — | — |
Legal tests applied
9 references- s.212 ERA 1996
- s.212(3)(c) ERA 1996
- s.94 ERA 1996
- s.108 ERA 1996
- s.155 ERA 1996
- Welton v Deluxe Retail Ltd (t/a Madhouse) [2013] IRLR 166
- Kelly v Riveroak Associates Ltd EAT 0290/05
- Harrison v George Wimpey and Co Ltd 1972 ITR 188
- London Transport Executive v Clarke 1981 ICR 355
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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