Mrs Lynsey McMullen v Scottish African Safari Park Limited — 2022

Mrs Lynsey McMullen brought a single claim of unfair dismissal against Scottish African Safari Park Limited. The tribunal held that she was not continuously employed for a period of not less than two years ending with her effective date of termination, as required by section 108 of the Employment Rights Act 1996. It therefore found that it had no jurisdiction to determine the claim and dismissed it.

The tribunal found that the claimant's first seasonal contract began on 3 July 2019 and was due to end on 27 October 2019, with no further notice required. It accepted that the lack of a P45 did not determine whether employment had continued, and found that the seasonal contract had in fact ended on 27 October 2019. It also accepted that there was no contractual relationship again until at earliest 25 November 2019, which was supported by the time records.

For the period between about 25 November 2019 and 13 January 2020, the tribunal found that the claimant was engaged as a worker under a flexible working agreement, not as an employee. It relied on the wording of that agreement, which said there was no obligation on the respondent to provide work, no obligation on the claimant to accept work, and no continuity of employment between assignments. The tribunal found that this arrangement was suitable because the claimant continued to run her own business and accepted work only as and when requested.

The tribunal accepted that the claimant had continuity of service from 13 January 2020 until 1 August 2021, when her employment ended by redundancy notice. However, because she could not count back to August 2019, she did not reach the two years' continuous employment needed to bring an unfair dismissal claim. The tribunal also held that the circumstances did not fall within section 212(3) of the 1996 Act.