A recent case before the EAT of Lipinski v Ebbsfleet Autospray Centre Limited is a useful reminder of the consequences of re-engagement and reinstatement and the possibility that this can extinguish the original dismissal. In this case Mr Lipinski was dismissed for misconduct in March 2010. He presented an Employment Tribunal Claim for unfair dismissal and meanwhile secured employment elsewhere. That new contract ended in July and he sought re-employment with the Respondent in July 2010. This was granted and the claim settled with a payment to the Claimant for holiday pay, arrears of pay and the Respondent confirmed that it had re-employed the Claimant on a permanent basis. The Claimant withdrew the claim before the Employment Tribunal and the file was closed.
The Claimant was then dismissed again on 20th May 2011 and again brought an unfair dismissal claim to the Employment Tribunal. On this occasion, the parties were unrepresented and the Employment Tribunal found that it did not have jurisdiction to hear the unfair dismissal claim as the Claimant did not have the then requisite length of service.
The Claimant subsequently appealed on the basis that the Tribunal had erred in not considering whether Regulation 3(2) of the Employment Protection (Continuity of Employment) Regulations 1996 had the effect of preserving the Claimant’s continuity of employment. The Claimant needed to establish three elements to rely on the Regulations and maintain continuity of employment. Firstly, that the Claimant had been dismissed by the Respondent; secondly, that the Claimant has presented a relevant complaint of dismissal; and thirdly, that in consequence of presenting such a relevant complaint the dismissed employee is reinstated or re engaged by his employer.
The EAT found that it was clear from the ET1 and ET3 in the original case that the Claimant was dismissed and had presented a relevant claim for unfair dismissal. The third point the EAT felt was likely but was a question of fact so the Claim was remitted back to the original Tribunal to consider this point. Whilst not a point one comes across every day it is a useful reminder of the consequences of re-engagement or reinstatement following a complaint to the Employment Tribunal for unfair dismissal.