Continuity of employment

The law gives employees the right to claim continuity of employment even if they have had a break between periods of employment, in certain circumstances. In Welton v Deluxe Retail Ltd, the Employment Appeal Tribunal (EAT) said that an employee can have continuity after accepting an offer of work, even if they had not actually started the work.

Basic facts

Mr Welton started working for Deluxe at their Sheffield store on 5 January 2009 until it closed on 23 February 2010. As the working week ran from Sunday to Saturday, his employment ended on 27 February 2010. He was offered and accepted work by Deluxe at the Blackpool store to start on 9 March 2010, but was dismissed on 11 December 2010.

He claimed unfair dismissal but, as he had been at the Blackpool store for less than 12 months (the qualifying period at that time for unfair dismissal), the tribunal had to decide whether his employment with the Sheffield store counted as continuous service.

Relevant law

Section 212(3) of the Employment Rights Act 1996 states that any week during the whole or part of which an employee is:

“(b) absent from work on account of a temporary cessation of work, or

(c) absent from work in circumstances such that by arrangement or custom he is regarded as continuing in the employment of his employer for any purpose...

counts in computing the employee's period of employment”.

Tribunal decision

The tribunal judge had to decide three things:

• Whether an offer of employment in one week to start the next amounted to a contract of employment so that there was continuity of employment
• Whether there was a temporary cessation of work
• Whether there was an “arrangement” which applied at the time.

The judge decided that Mr Welton had not received an offer of work at the Blackpool store before his contract ended at the Sheffield store. The earliest that the offer had been made was 1 March to take effect from 9 March, and he did not therefore have continuity of employment.

EAT decision

However, the EAT disagreed and allowed his appeal. It found that the offer of employment amounted to a contract of employment. As he finished work part way through one week and entered into a contract of employment during the following week, there was no week in which he did not have a contract of employment.

The EAT added that Mr Welton was, in any event, absent because of a cessation of work which could only be regarded as temporary.

However, it rejected his argument that he had continuity under section 212(3)(c) as the offer of employment at the Blackpool store was made after his employment in Sheffield had come to an end. As any “arrangement” would have to have been made before or at the time that the absence began and could not be made retrospectively, that argument could not succeed.