calculating continuous employment

The main principles are these:

• Continuity is calculated in weeks ending with a Saturday.
• A week counts towards an employee's period of continuous employment if the employee has a contract of employment with the company for the whole or part of the week. The employee does not have to do any work in that week, as long as the contract exists. Therefore weeks when the employee is on sick leave or maternity leave will count.
• Continuity continues even if the employee is employed on a succession of different jobs under different contracts. Therefore, an employee working under a series of fixed-term contracts continues to build up continuity of employment unless and until there is a complete week's break (Sunday to Saturday) between the contracts.
• There is a statutory presumption of continuity of employment, i.e. the onus is on the party seeking to establish a break in continuity to establish the break relied on.

In some circumstances, gaps between contracts with the same employer can count towards an employee's continuous employment.

These include weeks between contracts when the employee is absent from work because of a temporary cessation of work. This rule might apply, for example, if a company makes an employee redundant because of a downturn in orders and re-employs the individual as soon as demand picks up again. (It should be noted that, if an employee in these circumstances were paid a redundancy payment at the end of the first period of employment, that would break the employee's period of continuous employment for the purpose of calculating entitlement to any future redundancy payment. It would not, however, affect the individual's continuity for any other purpose, such as unfair dismissal protection.) A cessation is temporary if, judged with hindsight, it is relatively short compared with periods when the employee was in work. For example, even a break of several months between contracts might be viewed as temporary if the employee has been employed for upwards of 10 years.

For this rule to apply, the employee's absence must be due to the fact that there is no work available. So it will not apply if work is available but the company has simply chosen not to give it to the individual.

Weeks between contracts can also count towards continuity if, by arrangement or custom, the employee is regarded as continuing in employment for all or any purposes during those weeks. For this rule to apply, the arrangement must be made at the beginning of the break. The rule could, for example, apply where a company maintains a pool of casual workers and offers them permanent vacancies by reference to how long they have been members of the pool. The rule also covers a situation where an employee resigns to go on a career break, but during that break she must return to work for two weeks a year, maintain contact with her manager and not seek alternative employment without first consulting with her employer. Therefore, if a company does not want an individual to build up continuous employment during such a break in employment, it should make clear to the individual at the outset that he or she will not be regarded as continuing in employment during the break.

In some circumstances, a change of employer will not break an employee's period of continuous service. An important example of this is where the employee works for a company or part of a company that is the subject of a transfer of undertakings (Transfer of employees). Another example is where the employee goes to work for an associated employer. Two employers are associated if one is a company of which the other has direct or indirect control, or both are companies of which a third company has direct or indirect control. This rule is therefore likely to preserve the continuity of employment of employees who move between companies in the same corporate group.

If an employee takes part in a strike for the whole or part of any week, that week does not count towards the length of an employee's continuous service. On the other hand, the strike week does not break the employee's continuity of service.