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Is continuity of service preserved when there’s a break in service with the same employer?

Broken Link Chain (123rf ref 10326735)

SUMMARY:  The Employment Appeal Tribunal considers whether continuity of service is preserved where there is a break in service with the same employer.

Facts:

Background:

To qualify for certain statutory rights such as unfair dismissal, it is necessary for an employee to have acquired a minimum period of continuous employment i.e., one or two years’ service (depending on the start date). Where there is no contract of employment, continuity of service will be broken (except in some circumstances, none of which applied to this case).

Decision:

This case was an appeal from a judgment at the Manchester Employment Tribunal where it was decided that Mr Welton did not have sufficient continuity of employment i.e. he was only employed from March to December 2010.

The Employment Appeal Tribunal however disagreed concluded that Mr Welton had sufficient service to proceed with his claim for unfair dismissal. It was held that a contract of employment was created when Mr Welton accepted the Company’s offer of employment to work in its Blackpool store despite the precise date of that acceptance of employment being unclear on the facts of the case. This had the result that there was no week during the whole of which his relations with his employer were not governed by a contract of employment.

The Impact of this Decision on Employers:

This decision is a reminder that a contract of employment can arise on the acceptance of a job offer before any work actually begins under it. However, it would appear that the fact that Mr Welton worked for the same employer under each period of employment played a part in this decision being arrived at. This means that the same decision would not necessarily be arrived at when looking at continuity between two different employers.

Rachael Jessop, Solicitor.

Contact Information

fgmedia@floydgraham.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice. 

Updated: by FG Solicitors
Call us on:  0808 172 93 22

IS CONTINUITY OF SERVICE PRESERVED WHEN THERE’S A BREAK IN SERVICE WITH THE SAME EMPLOYER?

Broken Link Chain (123rf ref 10326735)

SUMMARY:  The Employment Appeal Tribunal considers whether continuity of service is preserved where there is a break in service with the same employer.

Facts:

  • Mr Welton began working for Deluxe Retail Ltd T/A Madhouse (the Company) on 5 January 2009 at their Sheffield store. The store closed on 23 February 2010. The working week ended on 27 February 2010.
  • On 8 March 2010 i.e., more than a week after the end of the working week, Mr Welton began work at the Blackpool store. He was dismissed on 11 December 2010 and brought a claim for unfair dismissal.
  • Before considering his claim, a decision had to be made as to whether or not Mr Welton had sufficient continuity of service (1 year) for the Tribunal to have the jurisdiction to hear his claim. If Mr Welton’s employment at the Blackpool store was a continuation of his employment at the Sheffield store, he would have sufficient length of employment for a Tribunal to hear his claim.

Background:

To qualify for certain statutory rights such as unfair dismissal, it is necessary for an employee to have acquired a minimum period of continuous employment i.e., one or two years’ service (depending on the start date). Where there is no contract of employment, continuity of service will be broken (except in some circumstances, none of which applied to this case).

Decision:

This case was an appeal from a judgment at the Manchester Employment Tribunal where it was decided that Mr Welton did not have sufficient continuity of employment i.e. he was only employed from March to December 2010.

The Employment Appeal Tribunal however disagreed concluded that Mr Welton had sufficient service to proceed with his claim for unfair dismissal. It was held that a contract of employment was created when Mr Welton accepted the Company’s offer of employment to work in its Blackpool store despite the precise date of that acceptance of employment being unclear on the facts of the case. This had the result that there was no week during the whole of which his relations with his employer were not governed by a contract of employment.

The Impact of this Decision on Employers:

This decision is a reminder that a contract of employment can arise on the acceptance of a job offer before any work actually begins under it. However, it would appear that the fact that Mr Welton worked for the same employer under each period of employment played a part in this decision being arrived at. This means that the same decision would not necessarily be arrived at when looking at continuity between two different employers.

Rachael Jessop, Solicitor.

Contact Information

fgmedia@floydgraham.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.