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Hussain v Acorn Independent College

The law states that a period when an employee is absent “on account of a temporary cessation of work” can count for the purpose of calculating their continuity of employment. In Hussain v Acorn Independent College, the Employment Appeal Tribunal (EAT) held that a teacher's continuity of employment had not been broken by the summer holidays, even though the first contract had only been temporary.

Basic facts

Mr Hussain starting working at the college in April 2008 on a temporary contract to cover for another teacher, Mr Urquhart, who had fallen ill. This lasted until 8 July.

Mr Urquhart then gave in his notice and it was agreed that Mr Hussain should start on a permanent basis from the start of the new term, which was 5 September. He was dismissed the following June.

Mr Hussain claimed unfair dismissal but the college claimed that he did not have the necessary one year’s employment. The tribunal therefore had to decide whether there had been a temporary cessation of work during the summer holidays or not.

Relevant law

Section 212 of the 1996 Employment Rights Act states that, when calculating continuity of employment, tribunals can include any week in which the employee has a contract of employment with the employer.

Section 212(3)(b) says that this can include any week when the employee “is absent from work on account of a temporary cessation of work”.

Tribunal decision

The tribunal judge said as Mr Hussain did not have an expectation that the contract would carry on after the summer, his case had to be distinguished from the decision of the House of Lords in Ford v Warwickshire County Council in which the claimant had had that expectation.

The reason for his dismissal was simply that the temporary contract had come to an end and it was pure chance that the college offered him a permanent contract.

There was also an aspect of unfairness in Ford that no permanent contract was in place but the judge concluded there was no such unfairness in this case as the first contract was a genuine contract to cover the illness of another teacher.

EAT decision

The EAT disagreed. It said that there was no requirement under the law that either of the parties should have an expectation of further work and said that the tribunal should have looked instead at the reason for the termination of the first contract.

This had come to an end as a result of “a cessation of the work” because the school no longer required Mr Hussain to teach classes from July to September. However, that need arose again in September once the summer break had come to an end.

It said: “There were the two contracts in sequence. The interval was short and temporary. There had been a cessation of the work at the end of the first contract and so all of the ingredients for the purposes of section 212(3)(b) were in place and the Judge should have so decided”.

The summer holiday break was therefore consistent with a temporary cessation of work and Mr Hussain could bring a claim of unfair dismissal.