Continuity of Employment

When an employee is employed under a Contract of Employment, there is a basic rule that continuity of employment exists from the start of employment until that particular employment ends. Therefore, breaks in a Contract of Employment with the same employer or between employers will break this continuity except in certain circumstances as outlined below.

Where an employee is employed under a Contract of Employment, and at least part of his time satisfies the requirements for continuity there is a presumption of continuity of employment. In such cases where disputes arise, the burden of proof falls upon the employer to demonstrate that continuity had been broken. Continuity of employment may be preserved even if no work is given to the employee or the employee is not required to perform any work

However, where the performance of the contract becomes illegal e.g. through criminal activity or commonly where wage payments are made with the employee’s consent without deduction of tax or National Insurance then the employee will not be able to enforce such a contract.

Where there are successive contracts with the same employer, continuity of employment will normally apply. Where the gap is less than one week, in most circumstances, such a gap will not break continuity of employment. Where there is a gap between contracts of more than one week, then continuity will be broken unless one or more of the following exists:

• A temporary cessation of work,
• An arrangement or custom and practice whereby the employee is regarded as continuing in employment
• The employee is incapable of work as a result of illness or injury
• The employee is made redundant but starts suitable alternative employment with the same employer within four weeks of the termination of the previous employment
• The employee appeals successfully against a dismissal in any situation, including redundancy, regardless of the gap between the notional end of employment and the recommencement of employment after the appeal.
• Any re-engagement ordered by a Tribunal where the employee returns to work in the same or similar role that existed prior to the dismissal.

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