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Continuous employment
[ch 10: pages 349-340]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 working relationship, a tribunal will sometime imply an “umbrella” or “overarching” employment contract, covering periods when the employee is not working. However, 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 document entitled her to turn down assignments when offered.
And 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 written contract documentation stated that “there is no payment when work is not available”.
As always, every case depends on its own facts. Here is an 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, or alternatively that even if they were employees, they lacked the continuous service needed to bring unfair dismissal claims because they had zero-hour contracts. In reality, the five careworkers could demonstrate that they had worked an agreed number of hours on a regular basis over several years caring for the same service user. The EAT said that the signed contract documentation did not reflect reality in this case. Instead, the careworkers were employees with global contracts of employment to provide a fixed number of hours each week, with enough service to bring unfair dismissal claims. “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