Bridging the gap?
October 26, 2010
As unfair dismissal claims generally require a year’s continuity service, there have been a lot of cases over the years brought in various situations where continuity of service may or may not have been broken.
The case of Hussain v Acorn Independent College Ltd dealt with a teacher on a temporary contract and whether the summer holiday could break his continuity of service.
Mr Hussain was initially employed as a teacher on a temporary contract to cover sickness absence. That temporary contract ended on 8 July 2008. On the same day, the teacher whose work he had been covering gave in his resignation. The employer agreed with Mr Hussain, at first verbally and then in writing, that he would be given a permanent job starting on 5 September 2008. During the summer break, a total of seven weeks, he was not paid. He was dismissed on 12 June 2009 and claimed unfair dismissal, but Acorn argued that he did not have sufficient continuous service.
The Employment Appeal Tribunal found that he did have sufficient continuous service. This was because the Employment Rights Act 1996 provides that weeks where the employee is absent “on account of a temporary cessation of work” do count toward the period of service. ‘Temporary’ is not specifically defined and will depend on the facts of each case. Here, the summer break was a “temporary cessation of work” because of the nature of the academic year – although the Court also made it clear that the same principle could apply to agricultural and seasonal work. In this particular case the Court looked at what had caused the end of the employment in July 2008 – the cause of the end of employment was the summer break, and therefore Mr Hussain did have sufficient continuity of service to bring an unfair dismissal claim.
This case will be of particular interest to those in the education sector as well as those who employ seasonal workers. There are measures that employers can take to limit this risk – please contact us for further information.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk)
Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.