Continuous service
In London Probation Board v Kirkpatrick, the EAT holds that the tribunal was correct to conclude that it is open to the parties to agree reinstatement as a matter of contract. Such an agreement, albeit made after the break in employment has taken place, fills in the gap for the purposes of computing the period of continuous employment, under s.212 of the Employment Rights Act 1996.
In Curr v Marks & Spencer plc the Court of Appeal holds that an employee who took a four-year break from work under her employer's "child-break scheme", after which she was re-engaged, had not been absent from work in circumstances such that "by arrangement she was regarded as continuing in the employment" during that break when no contract of employment subsisted.
In Curr v Marks & Spencer plc, the EAT holds that an employee who took a four-year break from work under her employer's "child-break scheme", after which she was re-engaged, was to be regarded as continuing in employment "by arrangement" during that period when no contract of employment subsisted.
In determining the question of continuity of employment for statutory employment protection purposes, employment tribunals need only examine each relevant week (that is, a week ending on a Saturday) to ascertain whether or not during any part of it an employee was working under a contract of employment for the employer against whom a claim is brought, holds the EAT in Sweeney v J & S Henderson (Concessions) Ltd.
Employees employed by the same employer for total periods of between four and six years under a succession of temporary contracts of less than two years' duration, were not regarded as continuing in employment by custom or arrangement during regular two-week breaks between those contracts, holds the EAT in Booth and others v United States of America.
In Collison v British Broadcasting Corporation, the EAT holds that an ACAS-conciliated settlement did not operate to allow the parties to contract out of continuity of employment for the purposes of claims such as unfair dismissal and redundancy pay brought under the Employment Rights Act 1996.
In Morris v Walsh Western UK Ltd, the EAT holds that an employer's ex post facto agreement to treat the period of an employee's absence from work as a period of unpaid leave was insufficient to preserve his continuity of employment.
An employee who left his job because of ill health and took lighter work elsewhere before returning to his original employer, did not lose his continuity of employment, holds the EAT in Donnelly v Kelvin International Services. This is because the statutory provisions which preserve continuity during periods of sickness or injury relate to the employee's capability to perform his or her original job.
In Berwick Salmon Fisheries Co Ltd v Rutherford and others the EAT holds that periods fishermen spent out of work between seasonal contracts of employment could not be described as "relatively short". The breaks were not therefore "temporary cessations of work" within the statutory definition and continuity of employment was broken.
In Lewis v Surrey County Council, the House of Lords rules that where an employee is employed under separate but concurrent part-time contracts, she is not entitled to aggregate the number of weekly hours worked under each contract in order to establish that a week "counts" towards a period of employment for the purposes of the Employment Protection (Consolidation) Act 1978.
Employment law cases: HR and legal information and guidance relating to continuous service.