The requirement to provide a written statement of terms of employment includes the date from which the employment began. It is important to record this as many employment rights only apply after a minimum period of continuous service. For example: after one year continuous service an individual can bring an unfair dismissal claim; after two years an employee is entitled to statutory redundancy pay.

https://www.nibusinessinfo.co.uk/node/993 (Table showing rights which become available after certain period of continuous service).

An important exception to the requirement of one years’ service for the right to bring an unfair dismissal claim is where an employee is dismissed without giving minimum statutory notice. In this case the date of termination is extended to incorporate the correct notice period for the purposes of calculating the qualifying period of service required to make a claim. Employers should be particularly careful when the one year period is approaching.

What is it?

According to Article 7 of The Employment Rights (Northern Ireland) Order 1996, an employee’s period of continuous employment “…begins on the day which the employee starts work and ends with the day by reference to which the length of the employee’s period of continuous employment is to be ascertained...”

Employment is presumed continuous unless an employer produces evidence to show that it is not.

Calculating Continuous Employment

For businesses with permanent employees who work full time this is not usually a difficulty but problems may arise when dealing with atypical working arrangements. Calculations often need to be made in the event of termination, to calculate notice or redundancy, or in determining whether a fixed term contract should become permanent. A week normally counts towards a period of continuous employment on condition that the employee actually works or the employee's relations with the employer are governed by a contract of employment.

Continuous service is worked out in months and years.  It starts with the date the worker begins work for the employer. If there is a break in the employment this normally means none of the weeks or months before that date will count as continuous service.

Absence from work because of sickness, maternity, paternity, adoption and parental leave, temporary lay-off and annual leave all count as continuous service automatically, provided that the contract continues throughout.

Breaks in Employment

Gaps in employment do not always break the continuity of service. A temporary cessation of work or where an employee is dismissed due to sickness or injury but is then re-employed within 26 weeks will not break continuous employment (Article 8 ER(NI)O 1996) Also where an employee is absent from work in circumstances where there is an arrangement or custom he is regarded as continuing in his employment then this absence will count for continuity purposes. This may be of importance in the case of substitute teachers as schools operate customary closures (see Hussain v Acorn Independent College Ltd below).

Employment can sometimes also be treated as continuous if an employee has previously been with a different employer. For example following the transfer of a business or undertaking or a change in service provider, under the TUPE regulations.

For continuous employment to accrue a worker must be an employee. This should be borne in mind when looking at periods of employment for casual workers and workers on zero hour contracts where it is sometimes difficult to determine employee status.

Interesting Cases

Koenig v The Mind Gym Ltd UKEAT/0201/12/RN

• Claimant signed an employment contract with the Respondent in August 2009. The contract stated that her employment would start on the 1st of October 2009.
• The Respondent dismissed her on the 29th of September 2010. The Claimant therefore had one day less than a year’s service.
• The Claimant had attended a meeting of her own accord before the contract had started and argued that this day should count towards her continuous service as work done under the contract.
• The ET held that there was no employment relationship on that date.
• The EAT dismissed the claimants appeal and found that work must be done under the contract of employment.
  
  

 Holt v EB Security Ltd (In Liquidation) UKEAT/0558/11/CEA

• Claimant was employed for almost 2 years with one company until the pub closed.
• Two weeks later he was employed by an associated employer. He was dismissed less than a year later.
• ET found claimant did not have requisite one year’s continuous service to be able to bring a claim for unfair dismissal.
• The break in employment was not temporary because the claimant’s work with the first employer never resumed. He was hired by a different employer in a different role.
• EAT upheld this decision.
  
  

 Hussain v Acorn Independent College Ltd UKEAT/0199/10/SM

• The claimant was a teacher employed on a fixed term temporary contract covering for a colleague which ended before summer.
• At the same time the contract terminated the colleague resigned. The Claimant was offered a permanent job starting after the summer holidays.
• The Claimant was dismissed the following June.
• ET found there was not one year’s continuous service because the Claimant had not expected further work.
• EAT disagreed. It was not a requirement that there be an expectation of further work. The summer break was deemed consistent with a temporary cessation of work. The Claimant was entitled to bring an unfair dismissal claim.