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Continuous service and employment rights

Continuous service and employment rights

JB
BY Jenny Brunton
Employment Law & HR

Under UK employment legislation, many rights as an employee may not arise until a minimum length of continuous and unbroken service has been completed. It is important for employers and employees to be aware of the qualifying service rules for each right before deciding on a particular course of action.

Defining continuous service

Continuous service can be defined as the period of unbroken time that an employee has worked. It is governed by statute: employers and employees cannot opt into or agree an alternative period of continuous service. Absences due to holidays, sickness or other granted forms of leave (such as maternity, paternity etc) do not affect continuous service. The most common example of an event which does break continuity is a week, Sunday to Saturday, between contracts. As part of the Taylor Review reforms, government has proposed to extend this period to four weeks to provide greater protection for employees.

 

        Unfair dismissal

In order to make a claim for unfair dismissal, the standard minimum length of continuous service is two years. Previously, employees needed only one year of continuous service but this was doubled in 2012. Linked to this is the right to request a written statement explaining the reasons for dismissal, which also does not come into effect until two years of continuous service have been completed. Some claims which are counted as automatically unfair dismissal do not require a qualifying continuous length of service – a few of which are discussed further on such as; discrimination linked to dismissal because of a protected characteristic, dismissal due to whistleblowing, dismissal due to health and safety activities and, dismissal due to exercising a statutory right. Nevertheless, generally an employer has far more flexibility in exiting an employee from their business in the first two years of employment as they do not have to carefully identify the fair reason for dismissal or demonstrate that they have followed a fair procedure in the lead up to terminating the contract.

 

•        Redundancy

The minimum length of service required for an employee to be eligible for statutory redundancy pay is two years. However, where an employer is obliged to collectively consult because it proposes to make 20 or more redundancies at one establishment, all employees are entitled to be collectively consulted with. Where the employer fails to do so, all employees may be eligible for a protective award irrespective of their lengths of service.

 

•        Discrimination

The right to make a claim of discrimination does not have a qualifying period. This is known as a day-one right, however a discrimination claim can be brought in respect of treatment which occurs before day one of employment as a job candidate can bring a discrimination claim in respect of the recruitment process. Short serving employees who feel aggrieved will often couch their concerns as a discrimination claim in order for the tribunal to have jurisdiction to hear it.

 

•        Whistleblowing

Whistleblowing as an employee’s right is granted from day one. No qualifying period is required and an employee holds the right not to face detriment or dismissal due to blowing the whistle.

 

•        Family friendly rights

Under the topic of family rights, there are some rights which are granted from day one, and others which require a qualifying period of continuous service. Maternity leave, along with adoption leave, parental bereavement leave and unpaid leave for unexpected family emergencies, known as statutory time off for dependants, are all day one employee rights. However, some rights such as paternity leave, and shared parental leave require twenty-six weeks of continuous service. Statutory maternity, paternity, adoption and shared parental pay all have a twenty-six week minimum service requirement, whilst unpaid parental leave has a continuous service requirement of one year.

 

•        Pay rights

Most rights linked to pay do not hold a minimum qualifying period of continuous service. These are: the right to receive the national minimum wage, the right to not have unauthorised deductions from pay, the right to paid holidays etc.

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