A number of statutory employment rights apply only where an individual has worked continuously for the employer for a certain amount of time — for example, the right to claim unfair dismissal applies to employees who have at least one year's service.
Continuous employment usually means working for the same employer without a break. A period of continuous employment begins on the day the employee starts work and is expressed in months or years, although when it comes to determining whether employment was continuous during a particular period, this is decided on a week-by-week basis.
This is because continuity is not broken if there is a gap in employment with the same employer of less than a week, but in some cases a gap of one complete week (or more) will be enough to break continuity. In this context a week is Sunday to Saturday.
In most cases working out a person's length of continuous employment will be quite straightforward, but can become more complex if the person has had any breaks during the period they have worked for the employer.
Some breaks count towards continuous employment and others do not. An employee's employment during any period will be presumed to be continuous as long as there is a contract of employment in operation.
Continuity of employment will not be broken if the contract is still running. When working out continuous employment, it is necessary to work out the total time spent working for the employer and not just the time spent in any one job. If a person has done different jobs, one following after another for the same employer, the time spent on all those jobs should be added together.
The examples below demonstrate circumstances in which employment will generally be deemed to be continuous (not broken):
l Absence from work through sickness, maternity or other family related leave;
l Absence from work due to a temporary cessation of work — that is, the employee has been temporarily laid off because the employer does not have any work or there is no work for the employee to do;
l Absence from work during strike action (although the period spent on strike action does not count towards the total period of continuous employment);
l Absence from work in circumstances in which by arrangement or custom the employment is regarded as continuous — for example, a period of unpaid leave where it is agreed that the employment will be regarded as continuing despite the period of absence;
Where there has been a change of employer. The time spent working for both employers should be taken into account when calculating the total period of continuous employment;
Re-instatement or re-engagement following a successful complaint of unfair dismissal;
Re-employment of an employee within 26 weeks of the effective date of termination where the employee has been dismissed or resigns on ill-health grounds;
Time spent working outside Northern Ireland.
Employers may engage employees on a series of short term contracts in an effort to try to avoid the employee gaining employment protection. When considering whether the fixed terms of these contracts can be added together to give continuity of employment, a tribunal would consider all the relevant circumstances of each case. It will in particular consider whether there has been a temporary cessation of work.
When doing this it will consider the length of time not in employment compared to the length of time in work.
For example, in one case (Ford v Warwickshire County Council HL 1983) the applicant to the tribunal was a teacher employed on a sessional basis. Each year she taught for three terms, then when the summer term ended, her contract ended. She was then re-employed each September. This happened for eight years.
At the end of eight years she was not taken on again and applied for unfair dismissal and redundancy. The House of Lords decided that she was continuously employed for the eight years because her absence from work each year was temporary, only for a short time and she always expected to return.
Further information on continuous employment is available from your local CAB, from the Labour Relations Agency on 028 9032 1442 or from the website at www.lra.org.uk.
Siobhan Harding is an Information and Policy Officer with Citizens Advice.