When Is A Break In Employment Not A Break In Employment

An employment appeal tribunal (EAT) decision has overturned an employment tribunal ruling, making an important clarification of what constitutes continuous employment.

The facts of the case are that an employee worked at a shop in Sheffield that closed down resulting in his employment being terminated on 23 February 2010. The employee then accepted an offer of employment with the same employer based in Blackpool on 1 March with his first working day commencing on 8 March 2010. The employment terminated on December 2011 and the employee then brought a claim for unfair dismissal.

The salient questions were whether the employee had the requisite one year period of qualifying service (as the law stood then prior to April 5 2012) or, importantly, whether the employment was interrupted by the termination of employment in Sheffield and the subsequent appointment with the same employer in Blackpool. The employment tribunal at first instance found against the employee. It asserted that there was insufficient continuity of employment and that the employee did not have sufficient qualifying service to bring an unfair dismissal claim.

The employee then appealed and the EAT allowed the appeal and held that the employee’s service under two contracts of employment with the same employer was continuous, with only a temporary cessation of work. This was even though the employee did not commence work under the second contract of employment until more than a week after the end of the first contract in Sheffield. The EAT also found that the second contract of employment in Blackpool had been created when the employee accepted the job offer on 1 March which meant that there was not a week’s gap between the two contracts to break the continuity of service.

Employers will therefore need to carefully consider when employment is actually offered to a former employee as opposed to the commencement date if they are to defeat any continuity of employment argument. They will also need to take into account the reasons why the original employment ended.

It is also important to document this in correspondence and any updated terms and conditions of employment to ensure clarity and certainty on the point.

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