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Complete Employee Guide to Continuity of Employment/Length of Service – May 2020

Tom Street’s 10 point Employee Guide to Continuity of Employment/Length of Service

UPDATED May 2020

How long you’ve worked for your employer (continuity of employment) is quite a fundamental point when it comes to the application of employment law.

For example, you only gain certain statutory rights if you have been employed for a particular period of time (eg you can only advance a claim for unfair or constructive dismissal if you have been continuously employed for more than two years).

As such, I have decided to put this post together to address what I consider to be the most important points from an employees point of view:

1. Can I reach an agreement with my employer to shorten or lengthen my employment?

No you can’t. The length of your employment is determined by statute, not by agreement between the parties. As such, if an employer and employee attempt to artificially manipulate an individuals length of service (for example by agreeing to bring one employment contract to an end and then immediately commencing another one) that would be invalid.

2. How do I calculate my start date?

Your employer is required to send you a an employment contract (or at least particulars of employment) within two months of your start date. The contract itself should contain confirmation of your start date. In the absence of this, your employment status “on the day on which the employee starts work”. If there is a dispute between the parties, the employment tribunal will determine your start date, which isn’t always your first day at work.

3. What if I worked abroad before I started working in the UK?

It depends, but you may be able to argue that the time you spent abroad counts towards your period of continuous employment

4. How do I calculate my end date?

It is often very important that you accurately calculate your end date, in particular because the time limit for starting many employment tribunal claims runs from this date. Your final day of employment is often referred to as the Effective Date of Termination (or the EDT), and is normally quite straightforward to calculate, as it is normally confirmed in writing, either on the dismissal letter or letter of resignation.

 

5. What if my employer has dismissed me without notice?

Employees are sometimes allowed to dismiss you without notice-for example when you have been found guilty of an act of gross misconduct. However, if you are entitled to notice, and are dismissed without notice, then a statutory minimum notice period (see s.97(2) Employment Rights Act 1996) is added on to your employment, which sometimes takes you over the two year period of continuous employment, allowing you to make a claim for unfair dismissal.

 

6. Does my first and last day count towards my continuity?

Your first day of employment and your last day of employment both count towards your overall period of continuous employment. Sometimes an extra day or two can make all the difference to whether or not you have the right to make a claim.

7. What if I have had a break in my employment?

If you have a break of 1 week, then your continuous employment is severed. However, if the break in your employment is regarded as a “temporary cessation” then this would not break continuity.

8. I have received a redundancy payment.

Continuous service would normally be severed if you receive a redundancy payment. However, if you are made redundant, but then re-employed by the same employer (or an associated employer) within 4 weeks of your redundancy dismissal date, your continuity of employment will be preserved.

 

9. I resigned, but my employer accepted me back.

If you resigned and then retracted your resignation, then your continuity of employment is not affected. Similarly, if you were unfairly dismissed offered your back job upon appeal (or reinstated into your job by an employment tribunal) then, again, your length of service is unaffected.

 

10. Is continuity of service affected by maternity or paternity?

Definitely not. Any time you have off for sickness, maternity, paternity, adoption or parental leave or for holiday, does not affect your length of service.

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