![[Basket]](images/basket.png){kind=small}
Your order![[cover image]](images/issue/BK201505.jpg)
Continuous employment
[ch 10: pages 310-311]For service to count towards the qualifying period for the purpose of unfair dismissal rights it must be continuous, with the same or an “associated” employer. A break in employment can mean having to start from the beginning to build up two years’ continuous service again.
Employees whose working patterns are irregular, such as casual or zero hours contract workers, often struggle to demonstrate the service continuity needed for an unfair dismissal claim. Where there is evidence of a regular course of dealing, a tribunal will sometime imply an “umbrella” or “overarching” employment contract, covering periods when the employee is not working. To reach this conclusion, the tribunal needs to be satisfied that in between each assignment there is some obligation on the employer to offer work and some obligation on the employee to accept it. This is usually very difficult to prove.
In St Ives Plymouth Limited v Haggerty UKEAT/0107/08/MAA, the EAT found evidence of an umbrella contract between the employer and Ms Haggerty, a casual worker, even though the written contract terms entitled her to turn down assignments when offered.
In Wilson v Circular Distributors Limited EATS/0043/05, the Scottish Appeal Tribunal found that a relief manager had a contract of employment even though the contract stated that “there is no payment when work is not available”.
Here is a good example involving zero hours contract workers:
Five careworkers were engaged by a care business to provide a 24-hour critical care package for a severely disabled woman. The care business lost the contract when the Primary Care Trust awarded it to new providers. The new providers argued that the careworkers were not employees, but that even if they were employees, they did not have the continuous service needed to bring unfair dismissal claims because they had zero hour contracts. In reality, the five careworkers could show that they had worked an agreed number of hours on a regular basis over a number of years caring for the same service user. The EAT said the contract documentation they had signed did not reflect reality. Instead, said the EAT, the careworkers were employees with global contracts of employment to provide a fixed number of hours each week, with enough service to bring their claims for unfair dismissal. “Any other conclusion, given the circumstances of this case, would have been unrealistic.”
Pulse Healthcare Limited v Carewatch Care Services Limited & Others [2012] UKEAT 0123/12/2007