Establishing continuity of service (using the rules set out in the Employment Rights Act 1996) is necessary for claims which require a qualifying period of employment. As long as an employee’s contract of employment existed at some point in a given week with the same employer, that week will count towards continuous employment. A gap of more than one week will generally break continuity, subject to certain exceptions.
In Welton v Deluxe Retail Ltd, the EAT considered whether two contracts of employment with the same employer were continuous despite a gap of more than one week between the end of the first contract and the start of work under the second contract.
Mr Welton worked for Deluxe Retail Ltd at its Sheffield store, which closed down. Within a week of the closure, he accepted another job with Deluxe to work at its Blackpool store. However, he did not start work in Blackpool until nearly two weeks after he had finished work at Sheffield. When Mr Welton was dismissed a few months later, he had less than 12 months’ service with the Blackpool store. His unfair dismissal claim therefore depended on having continuous service with his previous employment at the Sheffield store.
The EAT concluded that Mr Weldon’s second contract of employment started from the time when he accepted the offer to work in Blackpool rather than when he actually started work there. He therefore had continuous employment because there was no whole week during which he was without a contract of employment. In any event, despite starting at a different location, the EAT also considered that Mr Weldon was ‘absent on account of a temporary cessation of work’, which is one of the exceptions in the Employment Rights Act that does not break continuity.
Mr Weldon’s situation can be distinguished from an employee starting work with a new employer, when continuous employment would commence on the date the employee starts work, not the date on which the offer of employment was accepted which is often much earlier. Special rules also apply to an employee starting work with an associated employer