Mr S Alexander v Mersey Care Foundation Trust PRELIMINARY HEARING — 2020

This was a preliminary hearing before Judge Brian Doyle sitting alone. The respondent applied under rule 20 of the Employment Tribunals Rules of Procedure 2013 for its response to be accepted out of time. The tribunal accepted the respondent’s explanation for the delay, including the impact of the Covid-19 pandemic on the NHS, and concluded that the balance of prejudice and the existence of an arguable defence justified granting the application.

The tribunal then considered whether the claimant had sufficient continuous service to pursue an unfair dismissal complaint. The claimant relied on NHS service from April 2017 to October 2019 across more than one NHS employer, but the tribunal held that the relevant employers were separate legal entities and that their employments could not be aggregated for the purposes of section 108 of the Employment Rights Act 1996. The tribunal also noted that no exception relied on by the claimant applied.

On that basis, the tribunal found that the claimant did not have sufficient length and continuity of employment to bring his unfair dismissal complaint against the respondent. The complaint of constructive unfair dismissal was therefore dismissed. The judgment records that the sole remaining complaint concerned holiday pay, which was allowed to proceed to a final hearing.

In relation to that remaining issue, the tribunal recorded that the dispute appeared to concern whether the claimant had been on gardening leave and therefore entitled to salary, or whether he had been treated as taking unused holiday entitlement and paid for it. The respondent was asked to check the position and the parties were directed to tell the tribunal whether the matter had been settled or whether a final hearing was needed.