How long is a piece of string? Measuring an employee’s continuous service
How long is a piece of string? Answer: it depends on the string. However, there are certain assumptions we can draw from the question. We know that a piece of string exists; there is only one piece; there is a definitive start and end point; and if you cut the string you will have two pieces which are each definitely shorter. Now that we are all sufficiently confused, we’re ready to move on to measuring continuous service.
Continuous service, or continuous employment, is the statutory concept of measuring length of current employment. As a statutory concept it exists above anything expressly stated in an employment contract. For example, in some circumstances it may begin before an employee joins or endure after termination and any attempt to define or modify it by contract will be swiftly ignored. Using our string analogy, you could find a point on the string and proudly exclaim that the string begins here and is therefore X units long. However, despite your bold assertion, the string’s actual length has not changed.
A piece of string may not seem particularly important, but the length of an employee’s continuous service affects what rights they are entitled to. Certain rights such as the right to benefit from statutory redundancy pay and the right not to be unfairly dismissed only take effect following two years of continuous employment and some parental rights require 26 weeks service. Once established, the length of continuous employment is also taken into account when calculating the value of certain entitlements such as a statutory redundancy payment or an unfair dismissal basic award.
So, how long is an employee’s continuous service? Well, it’s time for some answers. Any week or part of a week where an employment relationship exists between a start and end date (inclusive) counts towards that period of continuous service. A change of employer usually breaks continuous service and so each period usually mirrors an individual’s term with each employer. However, there are some exceptions. Most notably, an employee’s continuous service will endure where there is a TUPE transfer or if they move to the employ of a group company. In these circumstances there would be one period of continuous service lasting their employment with both entities rather than two separate periods.
As alluded to above an employee continues their period of employment even if only working part of the week. For example, someone who only works Friday afternoons would have the same length of continuous service as a full-time employee assuming all other factors where the same. At the risk of over-stretching my string analogy, the width of the string will not affect its length. If we encounter a week though, at least from one Saturday to the next, where no employment relationship exists then the period of continuous service is deemed to be concluded. This may seem simple enough so far, but it is easy to get tied in knots when considering what does and doesn’t count towards a qualifying week.
Even where there is no performance of work, an employment relationship can persist. Where an employee is incapable of work as a result of illness or injury the weeks spent out of work will count towards continuous service for up to 26 weeks. An employee’s service would also continue where a relevant arrangement or custom exists, where there is a temporary cessation of work, or while the employee is on maternity, paternity, adoption or (shared) parental leave. Interestingly, there are some circumstances where time does not count towards the period of continuous service even though they do not break the current period. Strike days, work undertaken abroad, and military service have the effect of postponing the start date of the current period of continuous service to account for the time out of work.
As we have seen, where there is at least a week without an employment relationship, there will be a break in continuous service. The string will be cut. This protects employers who occasionally employ the same individuals on an ad hoc basis as without the intermittent breaks a significant length of service could accumulate. A one-week gap can also be used to provide a clean break of continuous service when re-engaging senior employees following a corporate acquisition.
From an employee’s perspective though, the growing adoption of “gig economy” practices in certain industries can make it difficult to access certain employment rights. For this reason the UK has committed, through the Good Work Plan, to extend the one week gap necessary to break continuous service to four weeks without an employment relationship. Consequently, individuals employed on a sporadic basis will find it easier to achieve longer periods of continuous service and greater rights. This extension of the required break period will also compliment new rights the Good Work Plan has committed to introducing including the right for employees on variable hours to request a more predictable and stable contract after 26 weeks of continuous service.
If you would like to know more about continuous service, or any of the other upcoming Good Work Plan reforms, feel free to contact the Employment department here at Acuity – No strings attached.
For more information please contact our Employment Team:
Claire Knowles – Partner
Mark Alaszewski – Associate
Rebecca Mahon – Solicitor
Amelia Wheatstone – Solicitor
Adam McGlynn – Trainee Solicitor