Ms D Dorrington v Tower Hamlets GP Care Group CIC — 2019

This was an open preliminary hearing before Employment Judge C Hyde sitting alone. The tribunal was asked to decide whether Ms D Dorrington had enough continuous service to bring an ordinary unfair dismissal claim under section 98(4) of the Employment Rights Act 1996, which requires two years' service under section 108. The respondent relied on a retirement break taken between 15 July and 15 August 2016, and the tribunal accepted that the claimant had returned to work only after that break.

The tribunal found that the claimant completed a new starter form on 15 August 2016 stating that her previous period of work had ended on 15 July 2016 and that 15 August 2016 was her return-to-work date. It also relied on the employer's retirement and return policy, which required a sufficient break in employment and stated that the arrangement would not be treated as continuous employment. The tribunal noted that the minimum break required by Bart's NHS at the time was 14 days and that the claimant had in fact taken about a month away from work.

On that basis, the tribunal held that the claimant's employment had ended in mid-July 2016 and that the break was not cured by any overarching agreement or by section 212 of the Employment Rights Act 1996. The tribunal referred to Booth as being on all fours with the situation before it. It therefore dismissed the ordinary unfair dismissal complaint forthwith for lack of qualifying continuity of service.

The tribunal did not determine whether the claimant could pursue a whistleblowing claim at this hearing. It said that issue would be listed for a further open preliminary hearing on 16 April 2019, and directed the claimant to provide clarification of the basis of any whistleblowing complaint by reference to the facts in her claim form and the relevant provisions of the Employment Rights Act 1996.