Substitute employer

It is already established in law that If a tribunal agrees to an application for interim relief it can order the employer to “continue” the employee’s contract until the full hearing. In Langton v Secretary of State for Health, the Employment Appeal Tribunal (EAT) held that tribunals can also make a continuation order against an employer who had been “substituted” for the original employer when it was dissolved.

Basic facts

Ms Langton, who worked for Devon Primary Care Trust as a psychotherapist in the Trust’s family therapy services, lodged a tribunal claim in December 2012 for detrimental treatment and victimisation because she had made a protected disclosure (blown the whistle). She was then dismissed at the end of March 2103, by reason of redundancy.

At the same time the Trust was dissolved, but Ms Langton was not transferred with other members of staff to VH Doctors Ltd under the Transfer of Undertakings (Protection of Employment) Regulations 2006.

She lodged a claim for automatically unfair dismissal as well as an application for interim relief under section 128 of the Employment Rights Act (ERA). As the Trust had been abolished by that stage, the Secretary of State successfully applied to become the respondent, adopting the defences previously put forward by the Trust.

Relevant law

Section 128 ERA states that if a tribunal decides at the application for interim relief that the reason for dismissal was because the employee made (in this case) a protected disclosure and the employer is either unwilling or unable to re-engage the individual, it can make an order for the employee’s contract of employment to be continued. This ensures that the claimant continues to be paid and to receive all benefits and other rights until their claim is decided at the full hearing.

Tribunal decision

The employment judge accepted the argument put forward on behalf of the Secretary of State that the tribunal could not make a continuation order if the employer (the Trust) was no longer in existence.

As the Secretary of State was not and never had been Ms Langton’s employer, it could not therefore make a continuation order against him and refused the application for interim relief.

EAT decision

The EAT, however, disagreed, arguing that as soon as the Secretary of State became the respondent in the case, he stood “in the shoes of the Trust for all purposes in the litigation” and was statutorily obliged to deal with all its civil liabilities under section 70 of the National Health Service Act 2006.

Given that the Secretary of State had accepted potential liability for the unfair dismissal claim, the EAT could see nothing in the interim relief provisions that would prevent him from defending the interim relief claim on its merits and being liable under a continuation order if one was made.

Likewise, it could see no reason why a tribunal should not make a continuation order against a party who had chosen to substitute themselves for the original respondent, as here.

It therefore allowed the appeal and remitted the interim relief application to a different employment judge.