Continuity of employment in the NHS
Winchester and Eastleigh Healthcare NHS Trust v Walker
The EAT has confirmed that statutory continuity of employment is not preserved for NHS staff moving between different health service employers unless there is a statutory reorganisation, TUPE transfer or S218(8) of the Employment Rights Act 1996 applies.
The EAT confirmed in its decision that whilst for certain purposes an employee may be entitled to treat employment by a former employer as counting for the purposes of certain benefits such as annual leave, sick leave, redundancy pay and maternity (as often happens in the NHS, local authority and other public sector employment), that is quite different to adding years into the statutory construct of continuous service, which cannot be done by parties to a contract, since it is a matter of statute.
In the case Winchester and Eastleigh Healthcare NHS Trust v Walker the EAT found that in calculating a Basic Award in an unfair dismissal case, the ET had incorrectly used the claimant’s entire service within the NHS, rather than the period during which she worked for the Respondent. There had been no statutory reorganisation or TUPE transfer.
The EAT reduced the Basic Award as the ET had disregarded S218(8) of the ERA, which preserves continuity for staff moving between NHS employers in specified circumstances none of which applied to the Claimant. Specifically, where an employee is employed in “relevant employment” by a health service employer and is taken into relevant employment by another such employer, continuity of service is not broken. Relevant employment means engagement while undergoing professional training, which involves successive employment by a number of different health service employers.