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21 November 2012
Employment Appeal Tribunal
Employment is ‘continuous' throughout any week during all or part of which there is a contract of employment. That includes a contract to start employment at some date in the future. That means that where one job has ended but the employee is offered and accepts another job to start at a later date, the gap between the two jobs does not break continuous employment.
W was made redundant when the store at which he worked closed. In the following week, he was offered and accepted a job at another store in a different town. He started work at the other store in the week after that. Within a few months he resigned complaining that he had been constructively dismissed.
His employers argued that he did not have one year's continuous employment and therefore could not bring his unfair dismissal claim. The EAT held, however, that the whole of the week in which he was made redundant counted (because a week counts if any part of it is governed by a contract of employment - s 212 Employment Rights Act 1996); the whole of the following week counted because a contract of employment existed as soon as he had accepted the offer of the new job; and the following week also counted because he had started the new job.
The EAT also held that, even if there had been a gap between the two contracts, that gap did not break the period of continuous employment because a gap caused by a temporary cessation of work does not break continuity (s 212(3)). The gap does not have to be between two identical jobs for s 212(3) to apply.
This does not mean that continuous employment starts as soon as a job is offered and accepted, because s 211(1)(a) states that continuous employment starts when the employee starts work. That section was not mentioned by the EAT in this case.
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