The details here don't apply to the Agency Workers Regulations – i.e. how the 12 weeks service are counted for ‘comparable’ benefits.
Many of your employment rights only apply if you've a minimum period of continuous employment – for example:
- The right to claim for unfair dismissal and request a written reason for dismissal
- The right to statutory maternity pay
- The right to statutory minimum notice periods
- The right to redundancy pay and paid time off to look for alternative work,
- Paternity leave and pay
- Adoption leave and pay
- Parental leave
- The right to become a ‘permanent’ employee on expiry of a fixed term contract
- The right to request flexible working and time off for training.
Continuous employment usually means working for the same employer without a break and is worked out in months and years, starting with the date you began work for your employer. The general rule is that if there's a gap in employment of a week or more, continuity of service with your employer is broken in accordance with the Employment Rights Act 1996 (if the break is less than one week, there's no break in continuity).
If there's a break in your employment then normally none of the weeks or months before that date will count as continuous service.
There are exceptions to this rule, where short breaks can still be counted as continuous employment, and these are:
Absence from work
Any of the following counts as continuous employment, provided your employment 'contract' (i.e. the obligation for you to provide work for pay) continues throughout:
- Maternity leave
- Paternity leave
- Adoption leave
- Parental leave
- Temporary lay-off
- Holiday breaks
- Other time off allowed by your contract of employment (e.g. agreed unpaid leave)
- Any official furlough leave taken under the Coronavirus Job Retention Scheme (CJRS) during the coronavirus pandemic of 2020.
Weeks when there is no contract in place
If you don't have a contract of employment with your employer for a number of weeks (i.e. you're not working and they're not paying you), the time could still count towards your continuous employment, if:
- You are away from work (you've resigned, your contract has ended, or you've been dismissed) while sick or injured and you're then taken back on as an employee within 26 weeks of the contract being terminated or cancelled
- Work stops temporarily (a temporary cessation of work up to 26 weeks)
- You're away in circumstances that your employer regards as continuous employment because of an arrangement or custom in your workplace (e.g. a school teacher)
Reinstatement after an unfair dismissal claim
Following a successful unfair dismissal claim at an Employment Tribunal (or as a result of an ACAS arbitration agreement) where you're reinstated to your job, the weeks which fall between the date you were dismissed and the date that you're reinstated count towards your continuous employment. This also applies if you're dismissed but then reinstated after an internal appeal decision (at your company).
During official industrial or strike action your continuous employment is treated as 'postponed'. This means that the period you were on strike for won't count towards your continuous employment, but it doesn't break the continuity of your period of employment.
Time with a previous employer
If you change employer, that normally counts as a break in your employment. However, time working with a previous employer can count towards continuous employment with your current employer if:
- The business you worked for is transferred to another employer (also known as TUPE)
- By an Act of Parliament, one corporate body takes over from another as your employer
- Your employer dies and their personal representatives or trustees keep you in employment
- You move from one employer to another 'associated' employer, meaning one of the companies is part of or related to the other company (either directly or indirectly)
- You're a teacher moving from a local authority school to be employed by the governing body of another school in the same local authority
- You're employed by a local authority or related body and are moved to a different authority for redundancy pay purposes only
- You're employed by the health service and you move to another health service employer while undergoing training
If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk - a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.
Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.