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Continuity of employment preserved where fresh offer of employment made

David Reid
7th Dec 2012

Recently, the Employment Appeal Tribunal (EAT) determined that continuity of employment will be preserved if the same employer makes a fresh offer of employment to an employee in the week following the employee’s dismissal, even if the new period of employment does not start until later.

 

This is because a contract of employment will be in existence from the point at which the fresh offer is accepted by the employee, not at the point at which the employee actually recommences work for the employer.

 

In this case, the employee worked at a clothing store in Sheffield. The store closed and the employee was dismissed. A few days later he was offered a position at the employer’s Blackpool branch, which he accepted. He was dismissed from this store a few months later. He brought a claim of unfair dismissal arguing that he has sufficient service to do so by virtue of his period of employment at Sheffield being continuous with his period of employment at Blackpool.

 

The law provides that an employee's continuous employment will be broken if no contract of employment governs the relationship between the parties for a complete week ending with a Saturday. However, in this case, whilst the employee did not recommence working for the employer until over one week later, the EAT held that by making an offer of re-employment before that week had elapsed, there was no week during which the employee’s relations with his employer were not governed by a contract of employment. The employee’s continuity of service was therefore preserved.

 

The decision does not mean that for the purposes of calculating continuity of employment for a new employee, the employer will be required to treat an employee's start date as the day on which the offer of employment was accepted. This is because there is a separate provision in law making it clear that a new employee’s continuous employment date is the date he or she starts work for the employer.

 

However, the decision does outline circumstances in which continuity of employment with the same employer will be preserved.

 

(Case name: Welton v Deluxe Retail Limited [2012] UKEAT 0266_12_2111)

The full case can be found here.

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