In the case of Kennaugh v Mr D Lloyd-Johns t/a Cheshire Tree Surgeons, the issue of continuity of employment required to be examined by the EAT. This case highlights the difference in the attention to detail which is often focused in carrying out the duties as a Court of first instance and masters of fact compared to that of the appellate Courts.

In this particular case, the Tribunal Judge concluded that the Claimant did not have sufficient continuity of service in order to raise a claim for unfair dismissal. This conclusion appears to have been based on a practical assessment by the Judge of the fact that the Claimant had not been living in the geographical vicinity of his employer and also that he had sought and obtained jobseekers allowance for part of what would have been the continuous period of employment. The difficulty arose in that the Claimant had allegedly been suffering from tennis elbow and claimed that he was therefore unable to attend work. The Tribunal concluded that there was a break in continuity of employment and that the Claimant was unable to raise proceedings. On analysis however, the EAT concluded that there was insufficient factual evidence before the Tribunal to demonstrate that the Tribunal properly considered, regardless of his geographical location or indeed the fact that he was on jobseekers allowance, whether or not he was “incapable of work by reason of ill health”. The Tribunal did not appear to question the ill health issue and in particular whether or not the Claimant was unable to do the work which he was employed to do with the Respondents, not simply any work.

On the basis of the lack of findings in fact to demonstrate that, the issue was remitted back to the Tribunal.

The law on this relates to continuity of employment and in particular the fact that any week in which an employee is not fit to do work still counts for continuity of employment and indeed, as the EAT have made clear in this case, it is the work for which the employee was engaged with the employer, not simply any work.

This case also highlights the importance of dealing with the facts in detail as what appears to be a perfectly practical and reasonable conclusion for the Tribunal to reach based on the Claimant’s living arrangements being elsewhere and having obtained jobseekers allowance. This was deemed to be an insufficient analysis of the facts to determine the issue of continuity. Clearly Mr Kennaugh was a determined individual and had the benefit of pro bono legal advice but, the fact remains that the Tribunal’s decision was ultimately overturned and his employer would be faced with further proceedings.