new employment with the same employer or continuous employment throughout?

Posted on January 28, 2013 by Martin Malone

Welton v Deluxe Retail (t/a Madhouse) is a case concerning continuity of employment for the purposes of calculating qualifying service for statutory employment rights. Under these provisions, any week when the employee’s relations with his or her employer are “governed by a contract of employment” will count towards continuous employment.

The case came about after Mr Welton was dismissed by Deluxe on 23 February 2010 – a Tuesday – when they closed their Sheffield shop down. The working week ran from Sunday to Saturday and therefore ended on Saturday 27 February 2010. At some point in the next working week, he was offered, and accepted, a job at another of Deluxe’s shops, in Blackpool. He started work on 8 March, i.e. more than a week after the previous working week ended.

Mr Welton resigned from his employment by letter dated 11 December 2010. Consequently, if employment at both stores was treated as continuous then he had sufficient service in order bring his claim. However, if the employment at the Blackpool store did not count as continuing from his employment at the Sheffield store then he did not. It was found at a preliminary hearing that he was not offered employment before the Sheffield store closed and the earliest date on which an offer to employ him in Blackpool was made was on 1 March.

The question was – did his contract begin when he actually started work, in which case there was a one-week break in continuity, or did it start at the earlier date when he accepted the offer? Mr Welton (representing himself in The Employment Appeal Tribunal) put up three arguments:

1. that he should be seen as being subject to a contract of employment during the first working week after the termination of his employment at Sheffield;
2. that, if not, his absence was due to a "temporary cessation of work" and, therefore, not a termination of employment; or
3. if not, there was an arrangement, albeit after the event, that his absence should not break contunuity of employment. Continue reading →

unfair dismissal qualifying period change will not be retrospective

Posted on January 26, 2012 by Martin Malone

As we reported last month, the qualifying period in order to bring a claim of unfair dismissal is being restored to two years. Although the change will come into force this April it will only apply to employees whose employment commences on or after 6 April 2012. It will therefore take some time for the change to have a practical impact for employers.

For example, someone who commences employment on 5 April 2012 will secure protection from unfair dismissal from 5 April 2013, whereas someone who commences employment on 6 April will not achieve the same level of protection until 6 April 2014.

However, it is vitally important for employers to remember that there are unfair dismissal claims for which there is no qualifying period so that protection from unfair dismissal is available from day one. These are chiefly claims resulting from the assertion of statutory rights and those which can lead to findings of automatically unfair dismissal. Subscribers should check our employment law guide for details of those unfair dismissal claims in respect of which the qualifying period does not apply.

It is equally important to remember that the qualifying period only applies to unfair dismissal claims. Continue reading →

newsletter – possible changes to unfair dismissal and other law following BIS review

Posted on November 23, 2010 by Martin Malone

The length of service needed to qualify for unfair dismissal rights has been changed from time to time. It started at six months when unfair dismissal was “invented” in 1971. It was increased in 1980 to one year (two years for small firms of 20 or less employees) and then to two years (for employees of any employer regardless of size) in 1985. Then in 1999 it was reduced to the current one year (although rather confusingly the two year period was left, and still continues, for the right to claim statutory redundancy pay).

Newspapers have recently jumped on a remark made by Lord Young of Graffham on the BBC Today programme in which he said, under some pressure, that he would consider recommending to the Coalition government that the two year qualification period which operated from 1985 to 1999 should be reinstated. He noted in the BBC interview that “employment started shooting up again” after the qualifying period was increased to two years in 1985 (if you have speakers on your computer you can click to hear a rerun of the BBC interview with Lord Young).

It is worth noting this here as it would be easy to take Lord Young’s widely reported remarks out of context.

Lord Young was being interviewed following his appointment by the Prime Minister to prepare a new report “on how to make Government more small business and start-up friendly”. That appointment was confirmed in a document called “Backing Small Business” issued by the Department for Business on 1st November and it was that appointment which led to the BBC interview. The document itself contains the usual platitudes about how the “Government is committed to a comprehensive effort to prioritise small businesses and those that run or aspire to run them”, and of course is none the worse for that, but it is not concerned with employment law (there is a separate ongoing review of employment law), does not spell out any detailed proposals and certainly does not include any suggestion that there may be a change to the unfair dismissal qualifying period.

None of this means that reinstatement of the previous two year qualifying period of continuous employment for entitlement to unfair dismissal rights is out of the question but it does mean that Lord Young’s comments should not be taken out of context. Lord Young was keen to stress that he wanted the views of others on the matter and it is not a current proposal.

Of course, Lord Young rather burnt his boats as a result of his “never had it so good” and “so called recession” comments in a Daily Telegraph interview on 18 November.

For those interested the arguments in favour of and against increasing the qualifying period are along the following general lines:

In 1999, when it reduced the qualifying period from two years to one, the government’s view was that a year is a reasonable length of time for an employer to decide if a recruit is suitable for the job and that it is unreasonable for employees to be left in a state of uncertainty about the security of their employment for longer than that. It was also thought that a two year qualification period inhibited mobility – if it takes you two years to qualify or requalify for unfair dismissal rights you will think long and hard before changing jobs.

The counter argument is that requiring only a short period of qualification for obtaining unfair dismissal rights encourages employers not to take on additional staff at all. This argument was effectively the basis on which the House of Lords ruled in February 2000, in the then much publicised Seymour Smith case, that the previous two year qualification period had been “objectively justified” during the recession in 1991 even though it was sex discriminatory in that fewer women than men could qualify.