They are not intended either as a substitute for professional advice or judgment or to provide legal or other advice with respect to particular circumstances.
Use of the service is subject to our terms and conditions. View our privacy policy , cookie policy , supported browsers and access your cookie settings. Search within Tasks Search. Share Twitter LinkedIn Facebook. Add a bookmark Your browser does not allow automatic adding of bookmarks. Work out an employee's period of continuous service Key points Many employment rights, such as the right to claim unfair dismissal and the right to a statutory redundancy payment, are dependent on the employee having a particular period of continuous service with the employer.
Generally, there is no break in continuity for as long as the employee is under a contract of employment with the same employer. Periods of continuous employment are reckoned on a week-by-week basis. Sometimes, a break in employment counts towards continuous employment. For example, continuity of service is retained where an employee is absent from work, for whatever length of time, because of a temporary cessation of work.
Some periods of absence for certain reasons do not break the continuity of a period of employment, but must be discounted when computing an employee's total period of continuous employment.
XpertHR resources. Continuous employment can also apply where an employee undertook work for a previous employer, for example, where the employee transfers from one employer to another.
Subject to certain exceptions where continuity of employment is not deemed to be broken, such as on the transfer of a business, an employee must complete a minimum period of continuous employment with an employer to be eligible for certain employment rights and pay entitlements.
There are standard rights that all employees will be entitled to from day one of their employment, whilst others that only accrue with time. Those rights that are acquired automatically and without a minimum service requirement include the right to take maternity leave, working time rights and the right to be paid the national minimum wage. Having completed a certain qualifying period of service, employees will then become entitled to enhanced employment rights, including:.
An employee may also be entitled to enhanced contractual rights once they have reached a certain length of service, depending on the terms of their employment contract. This could include, for example, additional annual leave, enhanced contractual redundancy pay or any other enhanced rights that trigger under the contract after a qualifying period of time with their employer. The rules on continuous employment are governed by the provisions of the Employment Rights Act , giving employees with a certain qualifying period of service various enhanced statutory employment rights.
This is calculated from the date of their employment contract to the effective date of termination. Where employment is terminated with pay in lieu of notice, the effective date of termination for the purposes of unfair dismissal rights is the date upon which the relevant statutory notice period would end. This means that an employee who started working for you on 1 September , would actually gain the necessary qualifying two-year period on 24 August It is also worth noting that some dismissals can be classed as automatically unfair, for which no qualifying service period is required.
This could include, for example, where the dismissal is shown to have been discriminatory by reason of a protected characteristic, such as age, disability or sex. It is important to remember that length of service will also impact the level of the statutory redundancy payment to which they are entitled. The amount of a redundancy payment must be calculated by determining the period of continuous employment, ending on the relevant date, reckoning backwards from the end of that period the number of years of employment falling within that period, and allowing the appropriate amount for each of those years.
This means that if an employee would have reached an anniversary increasing their length of service during the statutory minimum notice period, the extra year should be included in the calculation of the redundancy payment. If there is a break in employment then normally none of the time worked before that date will count as continuous service. For example, if someone was employed by you for several years but took a job with another business for six months before returning to your company, their continuous employment would not include any of the time previously worked for you.
Any computation of their period of service would need to run from the date of their new contract. However, not all cases of a break in continuity of employment are this clear-cut. Moreover, there is a presumption that employment is continuous, unless you can prove a clear break in the employment contract. Under the current provisions of the Act, continuity of employment will only usually be broken by a break of one clear week between two contracts of employment, where one clear week is to be measured from Sunday to Saturday.
There are also certain statutory exceptions where short breaks in normal employment can still be counted towards continuous employment. This means that when an employee strikes, these days do not count towards continuous employment, but this is not treated as a break in their continuity of employment. For example, if an employee started to work for you on 1 January and over the course of one year they spent five days on strike, their starting date for calculating continuous employment would move to 6 January The period of continuous employment for employees on a fixed-term contract moving to a permanent contract will depend on the extent of any break between the start and end-point of these contracts.
However, the usual exceptions will apply, such as where an employee is absent through illness or injury or there has been a temporary cessation of work. However, many fixed-term contracts will run for periods of several months or even years, where the employee will accrue the same statutory rights as with any other employee. Due to the nature of zero hours contracts, even where someone is employed regularly but on and off over long periods of time, there may be breaks in their contract of employment that affects their rights and entitlements.
However, under new government proposals, the time required to break a period of continuous employment is set to extend from one week to four weeks. This means that employees who work on a sporadic or casual basis will be able to have a gap of up to four weeks in their service with an employer without it affecting their entitlement to enhanced statutory employment rights.
No exact date for the change in the statutory provisions relating to a break in continuity of employment is yet available, although employers should be alert for new and extended guidance on this issue. For help and advice, speak to our experts.
A break in continuous service is usually a period of one complete week, running from Sunday to Saturday between two contracts of employment, unless certain exceptions apply. These could include, for example, a temporary cessation of work or where an employee is reinstated after an unfair dismissal claim.
If a contract of employment remains in place during a career break, continuous employment will not be broken, even if the employee is not required to perform any work. Even where there is no employment contract during a period of leave, continuity of employment can still be preserved by prior arrangement between the employer and employee.
These may include time out of service due to strikes, lock-outs and even unfair dismissal where the employee is reinstated or re-engaged into the service. Employment can sometimes also be treated as continuous if your employee has previously been with a different employer, for example following the transfer of a business or undertaking. See responsibilities to employees if you buy or sell a business. To work out how long an employee has been continuously employed, you should firstly establish the date on which they qualify for a particular right - their qualification date - for the entitlement in question.
The qualification date is defined differently for each entitlement. See a table showing minimum periods of continuous employment and qualification dates for employment rights. Once you have established the qualification date, you should count back from that date to the date of their first day of work with you.
However, remember that time with a previous employer can sometimes be added to the time with a present employer - see the effect a change of employer has on continuous employment. See continuous employment and breaks in work.
An industrial tribunal can settle any dispute about the length of an employee's continuous service.
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