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2 minutes reading time (355 words)

Long Service: You might get redundancy but not get to the tribunal

SHE had given 20 years of service to 10 different local authorities and also to the care inspectorate. She had left her previous job on the Friday and started this one on the Monday.

Had she been made redundant, she would have been entitled to a payment reflecting her whole period in the public sector.

But when she resigned, Mrs McGonigal found that none of that counted for anything under employment law.

In the case of McGonigal v Renfrewshire Council, the ET in Glasgow found that while her contract recognised the previous service with other employers, by giving her more generous annual leave and sick pay, it didn't give her the right to pursue a claim.

Because she had less than two years service with the same council, she could not bring a case.

She could have gone ahead if she had been bringing a case of discrimination or "whistleblowing", but not the claim she wished to pursue, which was that she had been forced to resign (constructive dismissal).

The ruling was made despite her employers waiting for five months before sending her a contract of employment, and then sending it to an old address.

"This is a strange situation in some ways," said Employment Judge Gall. The claimant's contract and the regulations relating to public sector employees made it clear she should be given "credit" for service with other bodies, in respect of redundancy, annual leave, sick pay and maternity leave. The claimant's belief when she resigned that she could bring a claim was accepted as genuine, but that did not take her any further either.

The EJ said that the point was mentioned in her written contract, but she was "not assisted" by the written contract not having reaching the claimant.

"The contract of employment was also issued late, being issued in November after the claimant started work with the respondents in June. That also is not ideal.

"Those failings however do not mean that the start date for qualifying service for an unfair dismissal claim is affected."

Regardless of the merit of her case, it had to be dismissed.

By Stephen Smith

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