Continuity of Employment

Question 1

s1(4) ERA

Answer 1

Written statement of particulars must include ‘the date when employment began, and the date on which the employee’s period of continuous employment (taking into account any employment with a prev. employer which counts towards that period)’

Question 2

Morris v Walsh Western UK Ltd [1997]

Answer 2

Left employment for 1 month but was then took back on. Made agreement that the month would count as unpaid leave and included the month as continuous employment. The court disagreed. Would start again when M came back

Question 3

s211(1)(a) ERA - Salvation Army v Dewsbury [1984]

Answer 3

Continuous employment begins with the day on which employee starts work - i.e. date on the contract.

Question 4

s97(1) ERA

Answer 4

‘Subject to the following provisions of this section…the effective date of termination:

(a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires
(b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect (summary dismissal), and:
(c) in relation to an employee who is employed under a limited term contract [fixed-term] which terminates by virtue of the limiting event without being renewed under the same contract, means the date on which the termination takes effect’

Question 5

s97(2) ERA

Answer 5

Unless employer gives these, EDT will be extended to included the statutory minimum notice period that should have been given.

Question 6

s86(1) ERA

Answer 6

SMNP
Notice to be given to an employer: where an employee has been continuously employed for 1 month or more his minimum notice period is:
1 week if continuous employment is for more than 2 years;
1 week’s notice for each year of employment if between n2 and 12 years; and
Not less than 12 weeks’ notice if his period of continuous employment is 12y or more

Question 7

s86(2) ERA

Answer 7

An employee giving notice must give a min. of 1 week after they have been continuously employed for one month.

Question 8

s86(3) ERA

Answer 8

Either party can still waive his right to notice or accept a payment in lieu of notice

Question 9

s86(6) ERA

Answer 9

Does not affect any right of either party to a contract of employment to treat the conduct of the other party.
Gross misconduct: employer can summarily dismiss without notice and without payment in lieu of notice.

Question 10

s212(1) ERA

Answer 10

‘Any week in which there is a contract of employment governing the relationship (even if it was only for one of the days of the week)’ - Hellyer Bros and Nethermere)

Question 11

s212(3) ERA

Answer 11

‘Any week during which, or during part of which the employee is:

(a) genuinely incapable of doing the work for which they are employed due to illness or injury’.
(b) absent for work on account of temporary cessation of work;
(c) absent from work in circumstances such that, by arrangement or custom, he is regarded as continuing in employment’

Question 12

Curr v Marks and Spencer Plc [2002]

Answer 12

C went on a career break as part of an M&S scheme; providing for regulating contact, on-going work so she could come in, return to work but required to resign. Returned and made redundant. How long was her EDT? EAT said that her career came within this exception, yet CA overruled this. Both parties must consider it within the exception. M&S didn’t as they got her to resign.

Question 13

s210(4) ERA

Answer 13

‘Weeks which do not count will break continuity’.
‘A week for these purposes is 7 clear days ending on a Saturday. If an employee is employed in adjacent weeks, continuity will not be broken.’