Continuity of Employment – Do I have enough continuous service?

In order to qualify for certain employment rights you must have accrued the relevant length of continuous employment with your Employer. For example if you wanted to claim unfair dismissal and you started work for a new Employer after April 2012 you would need to have worked for that Employer for 2 years before you could do so. This means that if you started work on the 1st May 2012 you would not be able to claim unfair dismissal until the 1st May 2014.

One question that often arises in the Employment Tribunal is whether the employee in question has continuous employment. There can be a break in employment for a number of reasons some of which will clearly break the continuous employment, i.e. where you leave and go to work for another Employer and then go back to the old Employer, this would clearly break continuity. If however you are have a baby and go on maternity leave, your employment would continue when you return to work as if you had not been away.

There was a recent case that was decided by the Employment Appeal Tribunal regarding continuity of service in which the Employee was found to have continuous service with an Employer after the closure of one shop and re-employment in another.

Mr Welton worked for Deluxe Retail in their shop in Sheffield. When the shop closed he was dismissed. In the week that followed he was offered a job in Deluxe Retail’s Blackpool shop and started work the week after.

There had been a break of 2 weeks between Mr Welton finishing work at the Sheffield shop and starting again at the Blackpool shop. During this time he was not employed and was not paid.

Unfortunately for Mr Welton he was dismissed after a few months from the Blackpool shop and he tried to pursue a claim in the Employment Tribunal for unfair dismissal.

The Employment Tribunal decided that he could not pursue his claim as he did not have enough continuous service to qualify to claim unfair dismissal (one year as it was for employment that started pre-April 2012). Mr Welton appealed to the Employment Appeal Tribunal and they overturned the Employment Tribunal decision.

The Employment Appeal Tribunal said that once the offer of new employment had been made by Deluxe Retail and accepted by Mr Welton there was a contract of employment between them which meant that Mr Welton was an employee during the 2 week break. They also said that even if there had not been a contract between them Mr Welton would have continued to be an employee as there was also only a temporary interruption in work.

Unless your circumstances are straightforward with no breaks or gaps in your work it can be difficult to establish whether or not you have the required length of service and if you are unsure we recommend that you seek legal advice.

Please let us know if you have any experience with this by leaving your comments below.

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