Does a seven-week gap between employments break continuity of employment?Wednesday, October 6th, 2010
In a relatively short written decision given on 8 September 2010 (although only just published), the Employment Appeal Tribunal ruled in the case Hussain v Acorn Independent College Ltd that, on being dismissed from his post as a teacher, Mr. Hussain had more than one year’s continuous employment, in spite of a break in the employment of seven weeks.
Although this particular case was decided in the context of whether Mr. Hussain could make a claim for unfair dismissal, the decision has a broader application to any situation where continuity of employment is at issue – including employment rights that involve payments, such as entitlement to statutory redundancy pay and statutory maternity/adoption/paternity pay.
The continuous employment rules are set out in sections 210 to 219 of the Employment Rights Act 1996. Any week during which an employment contract is in force counts towards continuous employment. A week’s gap in the employment breaks the continuity unless the employee
- cannot work due to sickness or injury,
- is absent due to a temporary cessation of work, or
- is absent in circumstances that are treated as not breaking continuity.
This case involves the “temporary cessation of work” exception. Mr. Hussain was employed in the spring term for a period of 12 weeks under a fixed-term contract, covering for a sick teacher. The contract ended at the start of the summer break. The sick teacher resigned at that point and, during the summer holidays, Mr. Hussain was offered and accepted a permanent position from the start of the next term. When he was later dismissed he had been employed for 41 weeks in the permanent job, not long enough to make a claim for unfair dismissal. However, if the 7-week break counted under the exception, the full period of employment would be 59 weeks, more than the required one year’s service.
Explaining his decision, that the seven week period was a “temporary cessation of work”, the employment judge made the following points:
- there is no requirement in the legislation that there be an expectation of further work when the first contract ends
- the two contracts do not have to be the same type of contract
- in education (also in the case of agricultural and seasonal work) there are periods when employees are not required to be at work
- the first contract had ended as a result of the cessation of work, and that same work resumed at the start of the new term
- the interval was short and temporary.