A Kemp Ms A McCulloch v Nercon Ltd — 2018

At a preliminary hearing in Ms A McCulloch's unfair dismissal claim, the respondent argued that she did not have the two years' continuous employment required by section 108 of the Employment Rights Act 1996 because her employment had been broken by three periods spent working abroad as a nanny. The tribunal found that she started work on 22 June 2015 and, for the purposes of this issue, treated the effective date of termination as 7 February 2018 rather than 1 February 2018, because the claimant's case was one of constructive dismissal and acceptance of any repudiation occurred on 7 February 2018.

The tribunal accepted that the first absence in July to August 2015 was agreed unpaid leave and that the later absences in 2016 and 2017 were also covered by an arrangement within section 212(3) ERA 1996. It relied on the evidence that Ms Paterson had agreed the claimant could take time off, that the claimant would remain an employee and return if needed, the absence of termination letters or P45s, the lack of new terms on return, and the diary note saying 'if needed'. Applying Curr v Marks and Spencer plc and Welton v Deluxe Retail Ltd t/a Madhouse, the tribunal held that continuity was not broken, the claimant had sufficient continuous service, and the unfair dismissal claim should proceed to a full hearing. This decision did not determine the substantive merits of the dismissal claim.