Guide

Continuous employment and employee rights

Continuous employment and breaks in work

To find out whether an employee's full service period - from the start of their employment to the qualification date - has been continuous and whether it all counts, you must consider it week by week.

For this purpose, a week is a period of seven days ending on a Saturday. If at any point continuity has been broken, the weeks before the most recent break will not count towards the employee's continuous employment.

A week normally counts towards a period of continuous employment if, in that week, the employee actually works or the employee's relations with the employer are governed by a contract of employment.

Absence from work because of sickness, maternity, paternity, adoption and parental leave, temporary lay-off and annual leave all count automatically, provided the contract continues throughout.

Industrial action

If an employee is involved in industrial action, eg a strike, you should count their starting date as postponed by the number of days between the last working day before the employee was on strike and the day on which they resumed work.

The starting date is not, however, postponed by periods of lockout, ie where the employer prevents employees from entering the workplace.

The employee's period on strike does not break the continuity of employment, except in some circumstances where the employer dismisses the employee during the strike.

Employment overseas

Service abroad generally counts towards continuous employment. In determining rights to a statutory redundancy payment, a week of this service only counts if the employee was classed as an employed earner during that week.

An 'employed earner' is someone for whom you pay Class 1 National Insurance contributions (NICs) - or for whom you would pay Class 1 NICs if they earned above the lower earnings threshold. Rates and thresholds for employers 2018 to 2019.

Military service

If you employ a member of the volunteer reserve forces who is returning from a period of military service, you must reinstate them in their old job.

If you terminate a person's employment solely or mainly because of their liability to be mobilised for military service, you will be committing an offence, and a court can order you to pay compensation as well as levying a fine.

See if a Reservist employee is called up for service.

Weeks when there is no contract

Weeks during which an employee has no contract of employment may count towards continuous employment - and will not break continuity of employment - if one of the following occurs:

  • work ceases temporarily
  • an employee is away from work sick or injured and is then re-engaged within 26 weeks of the contract being terminated
  • the employee is away in circumstances in which their employment is regarded as continuing for some purposes, by arrangement or custom