Mr W Tsang v Mighty Rhino Limited and 1 other — 2019

This was a preliminary hearing to decide which respondent employed Mr Tsang on 2 August 2017 and whether his continuous employment counted from 9 March 2015. The tribunal heard evidence from Mr Tsang and from the second respondent’s witnesses, and it had before it payslips, a P45, rota documents, photographs, and witness statements from former colleagues. It found that, as at 2 August 2017, Mr Tsang was employed by Spoon Basildon Limited. The first respondent, Mighty Rhino Limited, was dismissed from the proceedings.

The tribunal rejected the respondents’ case that Mr Tsang’s employment with Mighty Rhino ended on 6 November 2016 and that he then started with Spoon Basildon on 2 December 2016. It accepted Mr Tsang’s evidence that he worked at Basildon from 19 September 2016 and did so continuously until his dismissal on 2 August 2017. In reaching that conclusion, it preferred the claimant’s evidence and supporting material, including rota entries showing him on duty seven days a week, date-stamped photographs taken at the Basildon restaurant, and statements from former colleagues, over the respondents’ wage records and P45, which it did not accept as accurate.

Applying sections 212(1) and 218(6) of the Employment Rights Act 1996, the tribunal held that Mr Tsang’s continuous employment ran from 9 March 2015 to 2 August 2017. The effect of that finding was that the continuity requirement for statutory employment rights, including unfair dismissal and redundancy payment, was satisfied on the tribunal’s findings.